SOUND POLITICKS The Official Undergraduate Journal of Political Science at the University of Pennsylvania

IN THIS ISSUE: COLLEGE ADMISSIONS AND CRIMINAL RECORDS: BANNING THE BOX AGAIN By: Rebecca Heilweil

FROM THE CLASSROOM TO THE SUPREME COURT: THE FEDERALIST SOCIETY, ORIGINALISM, AND THE CONSERVATIVE LEGAL REVOLUTION By: Sean Foley

DEGREES OF THE “RESOURCE CURSE”: THE CASES OF NORWAY AND SAUDI ARABIA By: Jillian Moely

THE SPECTRE OF SYRIZA: THE EUROPEAN UNION DEBT CRISIS AND THE RADICAL LEFT By: Natasha Kadlec

AN INTERVIEW WITH PROFESSOR JESSICA STANTON By: Jordan Dannenberg

“MAY THE FIRST PRINCIPLES OF SOUND POLITICKS BE FIX’D IN THE MINDS OF YOUTH” – BENJAMIN FRANKLIN (1749)

VOLUME XXI SPRING 2016 2 | SOUND POLITICKS SPRING 2016 | 3 LETTER FROM THE EDITOR

The theme of the 2015-2016 academic year at the University of Penn- EDITOR-IN-CHIEF: sylvania was discovery. As we embraced the opportunity to explore, in great- Jordan Dannenberg er depth, one another’s academic endeavors, we developed a greater appre- ciation for shared intellectual experience. As the academic year draws to a EDITORIAL BOARD: close, this journal provides one more opportunity to engage with the robust Sarah Baldinger intellectual life at Penn. It refects the passion of the members of Penn’s polit- Nicholas Buchta Iman Charania ical science community and their commitment to contributing to the intel- Sarah Engell lectual life that Benjamin Franklin sought to inspire. In the spirit of this year’s Yasmeen Kaboud academic theme, I invite you to discover the contributions within Sound Pol- Casey Lipton iticks. Edgar Palomino The articles in this year’s issue address diverse topics and fall within sev- Brooke Reczka eral subfelds of the political science discipline. The frst article, by Rebecca Jordan Rosman Heilweil, examines the connections between criminal records, race, and col- lege admission. Her research is timely and comprehensive. The second article, LAYOUT EDITOR: by Jillian Moely, takes a comparative look at the “resource curse,” studying Ilana Wurman the diferent economic conditions in Saudi Arabia and Norway. Together, INTERVIEW EDITOR: the fnal two articles of the issue consider the evolution and functioning of Yasmeen Kaboud political spectrums at home and abroad. Sean Foley’s piece provides a nu- anced examination of the conservative legal revolution in the United States, FACULTY ADVISOR: while Natasha Kadlec’s article traces the recent rise of Europe’s radical left. Professor Eileen Doherty-Sil The following articles are laudable pieces of research by undergraduates here at Penn. I hope they challenge your assumptions and provoke discus- THANK YOU TO OUR sion. May you fnd pleasure in the process of discovery. SPONSORS: Political Science Department Sincerely, Pi Sigma Alpha Fox Leadership Program

AND A SPECIAL THANKS TO: Jordan Dannenberg Professor Jessica Stanton

SOUND POLITICKS is the ofcial undergraduate journal of political science at the All inquiries should be addressed to: University of Pennsylvania. It is published annually and covers a wide range of polit- [email protected]. ical topics. Applications for positions on the editorial Sound Politicks accepts submissions year-round from undergraduates of any class or board are available. major. Articles must include footnote citations and be approximately 4,000 words in length. Each year, the author of the best article receives a $100 prize. 4 | SOUND POLITICKS TABLE OF CONTENTS

COLLEGE ADMISSIONS AND CRIMINAL RECORDS: BANNING 4 THE BOX AGAIN* By: Rebecca Heilweil

FROM THE CLASSROOM TO THE SUPREME COURT: THE FEDERAL- 20 IST SOCIETY, ORIGINALISM, AND THE CONSERVATIVE LEGAL REVOLUTION By: Sean Foley

DEGREES OF THE “RESOURCE CURSE”: THE CASES OF NORWAY 38 AND SAUDI ARABIA By: Jillian Moely

THE SPECTRE OF SYRIZA: THE EUROPEAN UNION DEBT CRISIS 52 AND THE RADICAL LEFT By: Natasha Kadlec

AN INTERVIEW WITH 62 PROFESSOR JESSICA STANTON By: Jordan Dannenberg

SOUND POLITICKS VOLUME XXI * Winner of the 2016 Undergraduate Journal Spring 2016 Sound Politicks best of Political Science article prize SPRING 2016 | 5 COLLEGE ADMISSIONS AND CRIMINAL RECORDS BANNING THE BOX AGAIN

BY REBECCA HEILWEIL (C’18) MAJORS: POLITICAL SCIENCE & HISTORY

ABSTRACT nal record when he applied in December 2005, nor This paper explores the implications of college when he met with them after his acceptance.”1 When application questions regarding criminal records. the mother of his victim discovered his attendance at More specifcally, it examines how class and race are Penn, Judge C. Theodore Fritsch Jr. suspended Mit- implicated through asking such questions, as well man’s participation in the Bucks County academ- the historical justifcations for why numerous rele- ic-release program. vant problematic policies remain in place. First, the While the criminal justice system’s procedure paper explores how the American education system’s was clear, Penn’s response was almost indiscernible. structural challenges and inequities can afect the Penn spokeswoman Phyllis Holtzman told the Daily likelihood that a student receives a criminal record Free Press that, “If [Mitman] asked to re-enroll, we in high school. Second, the paper looks at how crim- would consider it, but it would be dependent on him inal record questions can manifest on college appli- maintaining certain conditions.”2 Like many univer- cations, and their efect on both student application sities, Penn’s approach to student criminal records is deterrence and admissions policies. Finally, the paper murky and context-oriented; there are no policies re- concludes by addressing potential policies to increase garding particular crimes. “Everybody is individually college applications among students with criminal evaluated,” she said. By 2014, Mitman had earned records, more fairly approach these records, and how a PhD in Economics from Penn, ten years after his to better represent criminal record application ques- initial charge.3 Penn’s policy regarding disclosure of tions. criminal records on its application remains vague. In 2007, Ohio State’s student newspaper, The INTRODUCTION Lantern, reported that the university had admitted In 2007, the University of Pennsylvania dis- covered that a twenty-fve-year-old sex ofender had been attending graduate courses while serving 1 Jeff Price, “Molester went from jail to Penn Until last week, the college didn’t know that grad student Kurt E. Mitman time for a felony sentence. Kurt E. Mitman, who had was a sex offender, held in a Bucks prison.” Philadelphia Inquir- won a Marshall Scholarship to study at Oxford, was er, January 18, 2007. charged in 2004 with sexual assault of a minor after 2 David Brand and Jessica Li, “Penn weighs readmitting having sex with a fourteen-year-old boy. According sex offender,” Daily Free Press, October 3, 2007. to Jef Price of the Philadelphia Inquirer, “Mitman 3 Kurt Mitman CV. Accessed December 12, 2015, at: https://www.dropbox.com/s/n70h6f2jivp3iz2/KurtMitmanCV. testifed he had not told Penn ofcials of his crimi- pdf?dl=0 6 | SOUND POLITICKS three sex ofenders charged with downloading and the year 2020.6 It is important to understand, there- creating child pornography and sexual battery. A fore, how a criminal background afects the like- subsequent investigation revealed that fve under- lihood of college admissions. Also, the impact of a graduates were also registered sex ofenders, whose criminal record on the likelihood of admissions may charges included “importuning, gross sexual impo- be changing. In a new world of “holistic admissions,” sition, unlawful sexual conduct with a minor, sex- in which ofcers take into account personal qualities ual battery, and attempted sexual conduct with a and qualitative talents, criminal records can take on minor.” 4 The college scrambled to respond; it was a new role.7 legally unclear whether the students had done any- Examining the infuence of criminal records thing wrong in failing to report their past mistakes. on the college admissions process may also provide While signifcant research has been done on further insight into the state of discrimination in the required criminal background checks for job appli- United States. While a more inclusive and dynamic cants, the same is not true for college applicants. Ad- admissions process potentially allows students with missions committees are notoriously secretive, and criminal records to overcome their pasts and demon- collecting aggregate data on students applying to strate personal growth, admissions committees may multiple schools, often from across the country, is in- place greater value on an applicant’s future com- credibly difcult. munity participa- This research, “While significant research has tion, disposition, nonetheless, is and personality; very important. been done on required crim- this preference First, given on- may results in a going discussions inal background checks for bias against those about the over- with criminal re- criminalization job applicants, the same is not cords. And, while of minorities, the employment dis- school-to-pris- true for college applicants.” crimination is of- on pipeline, and ten studied, reg- mass incarceration, it may be illustrative to exam- ulated, and investigated by the Equal Employment ine the essentially ignored phenomenon of student Opportunity Commission (EEOC), the federal gov- criminal background checks. Next, a comprehensive ernment has invested little, if any, resources into in- understanding of how criminal backgrounds afect vestigating inequities among college admissions. the college admissions process is important due to The debate over admission of those with crim- the workforce implications of education. The ability inal pasts is complicated; institutions maintain two to attend college and succeed is correlated with an primary motives for considering criminal records, increased earning potential.5 In addition, estimates which are often justifed in tandem. Schools defend project that the United States will be short millions requiring the disclosure of past criminal records with of workers for jobs that require college degrees by the arguments that the records are a useful indication

6 Patricia McDonough, “Counseling and College Coun- seling in America’s High Schools,” National Association for College Admissions Counseling, accessed December 21, 2015 4 Amanda Dolanksi, “Admitted,” The Lantern, November at http://www.nacacnet.org/research/research-data/Documents/ 13, 2007. WhitePaper_McDonough.pdf 5 Brian Bursed, “How Higher Education Affects Life-time 7 Phoebe Matlz Bovy, “The False Promise of Holistic Salary,” U.S. News and World Report, August 5, 2011. College Admissions,” The Atlantic, December 17, 2013. SPRING 2016 | 7 of student character or of potential threat to campus create a reasonably safe learning and living environ- safety. However, both of these arguments are based ment.” Others argue that inquiring about criminal on questionable assumptions and an imperfect meth- records dissuades a large number of applicants who od of retrieving criminal record information. For pose no danger to others, are unlikely to recidivate, instance, on March 14, 2015, the New York Times and can academically fourish.11 called for an end to criminal background checks for Campaigns against these criminal record inqui- college applications. The Editorial Board wrote, ries have developed. In 2014, students at Princeton “people who check ‘yes’ on the felony box can fnd University began petitioning for their university to themselves trapped in a Kafkaesque world where remove questions about criminal history. Students they are peppered with Inquisition-style questions for Prison and Education Reform (SPEAR) argued: and repeatedly asked to fnd documents that do not The United States criminal justice system is in- exist or are impossible to provide.” equitable and inefective. In light of the racial and Some trace the origin of student criminal back- economic discrimination perpetuated by U.S. justice ground check questions to the 1990 Clery Campus institutions, we believe that past involvement with Security Act, which was considered a victory for the justice system should not be used to evaluate per- both campus security and consumer protection. Af- sonal character or academic potential. We call upon ter a nineteen-year-old Lehigh University student Princeton University to remove the question about was murdered by a classmate, Congress passed the past involvement with the justice system from appli- statute to ensure public reporting of on-campus vio- cations for undergraduate admission.12 lence by universities. According to the Clery Center Noting that “Approximately one-quarter of for Security on Campus, the Act mandates that “all U.S. adults have a criminal record,” SPEAR further colleges and universities who receive federal fund- argued that: ing to share information about crime on campus A lack of interaction with this stigmatized pop- and their eforts to improve campus safety as well as ulation fosters deep misunderstandings about the na- inform the public of crime in or around campus.”8 ture of the criminal justice system and those afect- This information is made publicly accessible through ed by it. We believe that by eliminating questions the university’s annual security report. The Act has related to past involvement with the justice system, taken on a new importance in the context of grow- Princeton can open the door to increased diversity of ing on-campus sexual assault awareness.9 experience and perspective among the student body The debate about criminal records, safety, and without compromising its academic quality or moral personal character is rich. Darby Dickerson of Stet- character.13 son University, for example, contends, “background Other groups have noted that looking at previ- checks will not prevent all crime or injury on cam- ous arrests or convictions does not predict crime on pus.10 But they likely will prevent some, and also will campus. According to the Center for Community impact the culture by signaling that the university Alternatives, no study has shown that screening for is concerned about student safety and is working to criminal records increases safety on campus.14 More-

8 “Summary of the Jeanne Clery Act,” The Clery Center 11 New York Times Editorial Board, “College Applications for Security on Campus, accessed December 21, 2015, http:// and Criminal Records,” The New York Times, March 15, 2015. clerycenter.org/summary-jeanne-clery-act. 12 “Fact Sheet,” Princeton Students for Prison and Educa- 9 Ibid. tion Reform, accessed December 20, 2015, http://princetonspear. 10 Darby Dickerson, “Background Checks and the Univer- com/fact-sheet/. sity Admissions Process,” presented at the National Association 13 Ibid. of College and University Attorneys Convention, June 27-30, 14 “The Use of Criminal History Records in College Ap- accessed November 15, 2015, http://www-local.legal.uillinois. plications: Reconsidered,” The Center for Community Alterna- edu/nacua10/presentations/9F_handout.pdf. tives, Nov. 2010, 6. 8 | SOUND POLITICKS over, it is unlikely that precollege criminal activity ther discussion of the necessity of disclosure.19 De- is a good predictor of undergraduate misconduct. A spite the back-and-forth regarding the question of study from the University of Colorado found that criminal pasts and college admissions, many schools “only 3.3 percent of college seniors engaging in have yet to produce transparent and consistent poli- college misconduct had reported precollege crimi- cy for evaluating these applications. nal behaviors on their applications, and 8.5 percent This paper will examine how and which young … of applicants with a criminal history engaged in people tend to acquire criminal records and explore misconduct during college.”15 Not only do previ- the multiple layers of racial inequity. First, it will an- ous convictions not predict conduct on campus, but alyze the nature of youth crime and divergent ap- research also suggests that although white students proaches to punishment across racial groups. Second, are more likely to report drug use before and during it will explain the nuances and meanings of “criminal college, black students are more often arrested and record” and “criminal pasts,” and how they compli- incarcerated for drug crimes.16 Meanwhile, research cate the application process. Third, it will examine strongly suggests that educational opportunities can factors that infuence and deter those with criminal signifcantly reduce recidivism. A study from the pasts from applying to college. Fourth, it will con- Journal of Correctional Education demonstrated that sider how admissions committees handle criminal inmates who earned associate and baccalaureate de- records. A conclusion will look at policy alternatives grees while incarcerated tend to become law-abid- already in efect at some universities and future areas ing individuals signifcantly more often after their of study. release from prison than inmates who had not ad- vanced their education while incarcerated.”17 METHODOLOGY AND CONTEXT In October 2014, New York’s Attorney Gen- Thus far, there have been two notable, yet rel- eral Eric Schneiderman convinced three colleges to atively broad, studies of criminal record questions remove a criminal record question from their appli- in college admissions—one by the Center for Com- cations.18 “An arrest or police stop that did not result munity Alternatives (CCA) and another by Darby in a conviction, or a criminal record that was sealed Dickerson of Stetson University, whose research or expunged, should not—indeed must not—be a was connected to a small-scale survey conducted by standard question on a college application. …Such a American Association of Collegiate Registrars and question can serve only to discourage New Yorkers Admissions Ofcers. Neither of these studies ex- from seeking a higher education,” he said. St. John’s amined the question of race. SPEAR at Princeton University, Five Towns College, and Dowling Col- University has examined the relationships between lege agreed to remove the inquiry, prompting fur- race, criminal records, and college admissions, but produced only a qualitative collection of accounts of undergraduates’ experiences with the criminal jus- 15 Runyan et al., “Can student-perpetrated college crime tice system. be predicted based on precollege misconduct,”. Feb 2013. Injury Using an intersectional approach, this study ex- Prevention, accessed at http://injuryprevention.bmj.com/content/ pands upon existing research by providing further early/2013/02/22/injuryprev-2012-040644. 16 “Race/Ethnicity and Gender Differences in Drug Use insight into how race and criminal record inquiries and Abuse Among College Students,” U.S. National Library of among college applicants are related. It utilizes in- Medicine, May 13, 2008, http://www.ncbi.nlm.nih.gov/pmc/arti- formation gathered from several interviews and sec- cles/PMC2377408/. ondary analysis. Unfortunately, little aggregate data 17 Daniel J. Stevens and Charles S. Ward, “College Educa- on the topic of interest is available. Educational insti- tion and Recidivism: Educating Criminals is Meritorious,” Jour- nal of Correctional Education Vol. 48, I. 3 (September, 1997), 1. 18 Ariel Kaminer, “3 New York Colleges to Drop Crime Queries for Applicants” New York Times, October 26, 2014. 19 Ibid. SPRING 2016 | 9 tutions often have little incentive to reveal confden- students comprise 70 percent of in-school arrests.22 tial admissions data. While this study cannot provide Nationally, black and Latino students are suspend- a defnitive explanation for all the ways in which col- ed signifcantly more often than their white peers. lege admissions, youth, criminal records, and race are This gap is important as suspension has potentially related, it provides important insight into the college life-changing implications for a child’s education. application process and the exacerbation of racial in- A study by Attendance Works found that “missing equalities. three days of school in the month before taking the National Assessment of Educational Progress trans- PRE-APPLICATION INEQUITIES lated into fourth graders scoring a full grade level When analyzing the racial dynamics of college lower in reading on this test.”23 A Texas study found application criminal record inquiries, it is import- that a single suspension or expulsion almost tripled ant to acknowledge educational disparities in the the likelihood that a student would become involved secondary school with the juvenile system. Due to a justice system combination of “When analyzing the racial dy- within the same structural disad- namics of college application year. The ACLU vantages, strict report explained: policies, and big- criminal record inquiries, it Many un- otry—often termed der-resourced the school-to-pris- is important to acknowledge schools become on pipeline—black pipeline gate- and other minority educational disparities in the ways by plac- students are signif- ing increased cantly more likely secondary school system.” reliance on po- to be arrested. Ar- lice rather than rest rates are higher for minorities both in and out of teachers and administrators to maintain discipline. school, even though white students have a similar Growing numbers of districts employ school re- rate of criminal activity. source ofcers to patrol school hallways, often with High rates of in-school arrests of black students little or no training in working with youth. As a are part of a larger web of excessive, racially targeted result, children are far more likely to be subject to punishment (As explained later, poor and minority school-based arrests—the majority of which are for schools are more likely to have police ofcers on duty non-violent ofenses, such as disruptive behavior— during academic hours). According to the American than they were a generation ago. The rise in school- Civil Liberties Union (ACLU), black students are ex- based arrests, the quickest route from the classroom pelled three times more often than white students.20 to the jailhouse, most directly exemplifes the crimi- These students are then three times more likely to engage with the juvenile justice system in the fol- lowing year.21 Black students comprise 31 percent of school-related arrests; together black and Latino 22 Ibid; “School to Prison Pipeline Fact Sheet,” PBS, December 21, 2015, http://www.pbs.org/wnet/tavissmiley/tsr/ed- ucation-under-arrest/school-to-prison-pipeline-fact-sheet/. 23 Daniel Losen et al., “Are We Closing the School Disci- 20 “School to Prison Pipeline Infographic,” American pline Gap,” The Civil Rights Project, February 23, 2015, http:// Civil Liberties Union, accessed December 19, 2015, https://www. civilrightsproject.ucla.edu/resources/projects/center-for-civ- aclu.org/infographic/school-prison-pipeline-infographic. il-rights-remedies/school-to-prison-folder/federal-reports/are-we- 21 Ibid. closing-the-school-discipline-gap. 10 | SOUND POLITICKS nalization of school children.24 ing the threat of gun violence. These policies require Schools in urban areas have attracted the suspension or expulsion for violating codes of con- heightened attention of researchers. According to duct, even when students are non-violent. Evidence, the New York Civil Liberties Union, “At the start of however, strongly supports that zero tolerance pol- the 2008-2009 school year there were 5,055 school icies disproportionately afect minority students. In safety agents (SSAs) and 191 armed police ofcers Los Angeles, over three-quarters of expulsions were in New York City’s public schools. These numbers of Hispanic students under zero tolerance policies.28 would make the NYPD’s School Safety Division Critiques of zero tolerance are abundant. Many the ffth largest police force in the country—larger cite the racial bias associated with such policies. than the police forces of Washington D.C., Detroit, According to the Vera Institute, “White students Boston or Las Vegas.” According to these numbers, who were referred for disciplinary action received New York has more SSAs per student than many cit- a higher percentage of in-school suspensions and a ies have police ofcers per citizen. During the same lower percentage of more serious exclusionary con- school year, almost 100,000 students passed through sequences.”29 Zero tolerance policies do not allow metal detectors to go to school, and 77 percent of for situational-based decisions and are often dispro- incidents involving police at schools with permanent portionate responses to the ofense committed. The metal detectors were non-violent. Schools with met- Vera Institute notes that for “culturally and linguisti- al detectors also consistently receive less funding per cally diverse students, the perceived bias on the part student than schools without them. These schools of teachers easily translates into yet another symbol also issued 48 percent more suspensions.25 of the barriers to mainstream success they must en- These concerning statistics apply to other major dure.”30 And when minority students are expelled or urban areas as well. In the year 2009, the Los Ange- suspended, they are subject to the mass policing and les Unifed School district reported that 62 percent racial profling often rampant in urban communities, of out-of-school suspensions were of Hispanic stu- worsening existing racial disparities. dents, 33 percent were of black students, and only 5 percent were of either white or Asian students. The DIVERSITY IN CRIMINAL RECORD INQUI- LAUSD also reported that of its students expelled, 67 RY FORMATTING AND IMPLICATIONS percent of Hispanic students and 5 percent of black Before continuing, it is important to clarify col- students were not ofered alternative educational leges’ typical requirements of criminal past disclo- 26 services. The numbers were just as staggering in sure. Usually, a school mandates that students take New Orleans, which reported that 67 percent of its it upon themselves to disclose a criminal record but 27 school-related arrests were of black students. rarely conducts independent background checks.31 Zero tolerance policies, which result in many Further investigation is then only triggered if an suspensions and expulsions, are important to study applicant has disclosed a criminal record, which can when investigating how secondary school structures require substantial secondary documentation. While afect college applications. Zero tolerance programs few schools automatically reject students with crim- were intended to guarantee school safety by mitigat- inal records, most will take records into consider- ation. Though it is relatively uncommon for a col- 24 “School to Prison Pipeline Infographic,” American Civil Liberties Union, accessed December 19, 2015, https://www. aclu.org/infographic/school-prison-pipeline-infographic. 28 Ibid. 25 Ibid. 29 The Vera Institute of Justice, “A Generation Later: 26 “School to Prison Pipeline Fact Sheet,” PBS, December What We’ve Learned about Zero Tolerance in Schools,” Decem- 21, 2015, http://www.pbs.org/wnet/tavissmiley/tsr/education-un- ber, 2013, 2. der-arrest/school-to-prison-pipeline-fact-sheet/. 30 Ibid, 3. 27 Ibid. 31 Dickinson, 1. SPRING 2016 | 11 lege to deviate from the norm of self-disclosure, St. the table below: Augustine’s College in Raleigh, North Carolina, for instance, has continued to require applicants to “to Violent crime conviction 86.3 produce a statement from their hometown police Sex ofense conviction 86.3 department certifying whether they have a criminal Felony conviction 81.5 record.”32 The American Association of College Registrars Violent crime pending 70.2 and Admissions Ofcers (AACRA) and the Cen- Drug or alcohol-related conviction 69.4 ter for Community Alternatives (CCA) conducted Sex ofense pending 67.2 a study of the process and evaluation of applicant Felony pending 64.5 criminal background checks. While the study could Violent crime arrest 62.9 not account for all American universities, it provides Sex ofense arrest 60.0 a view into the landscape of how criminal past infor- mation is used and how approaches difer based on Felony arrest 56.5 institutional preference. Of 247 schools, 58.3 percent Sex ofense youthful ofender adjudication 54.4 reported collecting criminal justice information from Violent crime youthful ofender adjudication 54.0 all applicants, and inquiries were signifcantly more Drug or alcohol-related pending 52.4 likely at private and four-year institutions than oth- Drug or alcohol-related arrest 48.0 er institutions.33 According to the study, more than Misdemeanor conviction 40.8 18 percent of institutions collected information that goes “beyond self-disclosure and conduct[ing] crim- Misdemeanor pending 32.3 inal background checks on any applicants.”34 Six- Drug or alcohol-related youthful offender adjudication 32.3 ty-two percent of surveyed schools consider crim- Misdemeanor arrest 28.0 inal justice information in their decision, while 13 Misdemeanor youthful ofender adjudication 21.0 percent of institutions maintained an automatic bar Lesser ofense conviction 16.9 for some type of crime. 35 More than 8 percent of 125 Lesser ofense pending 14.6 schools with an automatic admissions bar are orient- Lesser ofense arrest 13.8 ed toward felony convictions, while 12.2 percent automatically reject sex ofense convictions. More Lesser ofense youthful ofender adjudication 10.6 than 10 percent of these schools reject students with [Note: “other responses are not yet coded] violent convictions, and only 0.4 percent of schools Source: Q.27 (includes only those that did not answer “We do 36 reject misdemeanor convictions. The study also not ask the applicant about such records or fndings in Q.2) examined how type of crime, arrest, and conviction 37 afected an application. The results are reported in There is no standard timeline for criminal re- cord revelation. Rarely, students are required to pro- vide criminal background information before they 32 “Prospective Students, Additional Admissions Forms, Police Record Check, visited December 24, 2007, http://www. apply. For many institutions, self-disclosure through st-aug.edu/prospective/pdfs/Pol ice_Record_Check.pdf. the Common Application, a program that aggregates 33 American Association of Collegiate Registrars and Ad- and standardizes hundreds of applications to simplify missions Offcers and Center for Community Alternatives Survey, the application process, is the norm. Other schools accessed at http://www-local.legal.uillinois.edu/nacua10/presen- may run criminal background checks after applica- tations/9F_handout.pdf, 2. 38 34 Ibid, 2. tions are submitted. These approaches are the hard- 35 Ibid, 5, Table 8. 36 Ibid 5, Table 8. 37 Ibid, 7. 38 Ibid, 1. 12 | SOUND POLITICKS est to study as admissions committees are unlikely to fashing one’s breasts, having consensual sex with a publicize how they pursue these checks. According teenager, sleeping with a sibling, and even embrac- to Dickerson, “if an applicant answers ‘no’ to ques- ing minors can all qualify as a sexual ofense.44 tions related to criminal and disciplinary history, the While it is unclear whether a student will inquiry ends; if the applicant answers ‘yes,’ then ad- become aware of a college application denial based ditional explanation or documentation is required. A on his or her criminal record, Dickerson identifes majority of respondents to the AACRAO/CCA study multiple relevant, potential legal concerns, some indicated that of which are of par- they consid- ticular relevance to ered crim- “Consideration of criminal re- race.45 Consideration inal-justice of criminal records information cords often intersects with is- often intersects with in making ad- sues of arbitrary selection pro- issues of arbitrary missions deci- selection processes sion, but only cesses and discrimination.” and discrimination.46 a small per- She notes that “back- centage con- ground-check poli- sidered a criminal background as an automatic bar to cies that have a disparate impact on protected classes admission.”39 Many universities, hoping to balance might be subject information related to arrests that efciency and student privacy, look for specifc “red did not lead to conviction have been shown to have fags,” such as unexplained gaps between high school a disparate impact on African Americans.”47 It is un- graduation and college application. Red fags help likely, however, that young minority students would committees to determine whether a student’s crim- have the legal ability or information regarding the inal past should be further investigated.40 According rationale of their rejection to pursue a legal challenge to the AACRAO/CCA study, 15.4 percent of insti- to an admissions decision, leaving little room for re- tutions will run background checks on “any appli- dress. Still, courts have generally upheld the permis- cants within distinct categories.”41 Others require sibility of university admissions criminal background criminal background checks only for students living checks, citing their accordance with federal and state in dormitories. Meanwhile, international students statutes.48 The manner in which information on ju- often bypass the entire process.42 venile records is reveals may vary depending on the Some universities specifcally inquire as to state.Various state laws can afect how juvenile re- whether applicants are registered sex ofenders. Of- cords are processed by background checks. Dicker- ten, these schools have instituted a codifed ban on sex son explains: ofenders taking courses with other students without Sealed and expunged records pose particular considering individual context.43 It is perhaps im- problems. ‘The federal government and nearly every portant to note, here, the diversity of situations that state have enacted some type of statute providing for can manifest in requiring an individual to register for either the sealing, expungement, or limited access to a sex ofender registry. Taking naked photos of one- juvenile records.’ The primary goal underlying these self as a minor, visiting a prostitute, public urination,

44 Erin Fuchs,”7 Surprising Things that could make you a 39 Ibid, 2. Sex Offender,” Business Insider, October 9, 2013. 40 Ibid, 6. 45 Dickerson, 14. 41 Ibid, 2, Table 4. 46 Ibid, 15. 42 Ibid, 8. 47 Ibid, 15. 43 Ibid, 2. 48 Ibid, 15. SPRING 2016 | 13 statutes is to allow ofenders to start anew by remov- It is difcult to empirically measure how much a ing the stigma associated with a criminal record. But question regarding history deters college applicants. state laws difer regarding “the procedure, criteria, Collecting data on applications never submitted in- and intended efect of sealing juvenile records.49 volves heavy surveying and presents several structur- No state bars universities from asking about al challenges. It is even harder to determine a stu- juvenile records, though “some states...prohibit dent’s reason for not applying to a specifc university. questioning about expunged records, regardless of Moreover, in a country where some schools unilater- context.”50 The variation of rules across states can de- ally reject students with records, while others active- ter students from applying college. Some universities ly encourage students with past criminal activity to ask for all crim- apply, navigating inal background the college appli- information, even “In addition to the deterrent cation process can expunged records. be especially con- Students are of- of criminal background ques- fusing. Despite ten confused as tions on applications, incar- the limitations to whether omit- of measuring ting information cerated students and students how questions regarding an ex- on applications punged, sealed, or with criminal records are also infuence the juvenile record on likelihood of ap- a college applica- financially disadvantaged; plication submis- tion qualifes as sion, one organi- application mis- they have limited access to zation has looked representation or into the problem falsifcation.51 It federal financial aid.” of college appli- is not difcult to cants from stu- imagine how, for minority and fnancially disadvan- dents with criminal records. A broad study of sixty taged applicants, these questions and legal gray areas state universities in New York by the CCA found can be severely discouraging. that nearly two-thirds of students who begin college applications and answer yes to having committed a DETERRENCE AND THE BOX felony will never fnish them For many minority students, approaching and In addition to the deterrent of criminal back- completing a college application poses unique chal- ground questions on applications, incarcerated stu- lenges. And Americans who have criminal histories dents and students with criminal records are also are often discouraged from submitting an applica- fnancially disadvantaged; they have limited access tion when the applications ask if they have ever been to federal fnancial aid.52 If an applicant is currently convicted of a crime. The process, which often at- serving time in a federal or state institution, he or she tracts greater scrutiny of people who answer “yes,” is ineligible for a Pell Grant or federal student loans.53 drives away large numbers of people who present no According to the Department of the Education, “if danger to campus safety and are capable of succeed- ing academically. 52 “Students with criminal convictions have limited eligibility for federal student aid,” Federal Student Aid, accessed 49 Ibid, 17. December 21, 2015, https://studentaid.ed.gov/sa/eligibility/crimi- 50 Ibid, 17. nal-convictions#incarcerated. 51 Ibid, 18. 53 Federal Student Aid. 14 | SOUND POLITICKS you were convicted of a drug-related ofense or if discovering their criminal records. Applicants are put you are subject to an involuntary civil commitment in a double-bind: students can be honest about their for a sexual ofense, your eligibility may be limited.”54 pasts and face damaging their chances for acceptance Adding to fnancial disadvantages, some institutions or lie and risk being caught for falsifying documents ask students to later while pur- pay for their own suing an under- criminal back- “Unequal access to college ad- graduate educa- ground checks. tion. In this way, The University of vising and guidance may also the self-disclosure North Carolina at affect how students approach approach is prob- Wilmington, for lematic. example, requires questions about criminal re- Unequal ac- the ten percent of cess to college ad- students who raise cords on applications.” vising and guid- the previously dis- ance may also cussed “red fags” to pay approximately twenty dol- afect how students approach questions about crim- lars to fund their own criminal background checks. inal records on applications. Since the mid-1950s, It is important to contextualize the fnancial the world of college admissions has pivoted. While disadvantages of student criminal records with the a minority of students once pursued higher educa- socioeconomic status of those likely to engage with tion, now over 65 percent of young people apply to the juvenile justice and prison system at an early age. college.56 With admissions standards becoming in- These economic inequalities have a ripple efect. Stu- creasingly indiscernible, and the process growing dents attending the richest ten percent of institutions more complicated, the beneft of a college advisor pay only a ffth of every dollar spent on them, while is immeasurable. According to the National Associ- the at the bottom ten percent, students pay almost 78 ation for College Admissions Counseling, “repeat- percent of funds invested on them.55 ed studies have found that improving counseling Criminal background questions on college ap- would have a signifcant impact on college access for plications may also disadvantage those with a quali- low-income, rural, and urban students as well as stu- ty that is typically appealing to admissions commit- dents of color.”57 Counselors can play a crucial role tees: honesty. Some argue that because many schools for students with criminal records; advisors can serve only run background checks on students who admit as guides through a logistically and emotionally gru- to past criminal activity, the system punishes those eling admissions process and can improve students’ who are forthright about their pasts. According to odds for admission by writing letters of recommen- one survey, the most common way of getting crim- dation. inal record information “was through questions on Of 125 institutions included in ACCRAO’s self-disclosure questions on their own applications or study, 87 have special requirements for students with on the Common Application. Of the 144 institutions criminal records. These regulations can include in- that reported collecting criminal justice information terviews, letters of explanation, letters of reference from all applicants, only ten said they used criminal background checks.” Though students who have lied on applications have been caught in the past, many 56 “The Institutionalization of Racial Profling Policy: An are likely to graduate without their university ever Examination of Antiprofling Policy Adoption Among Large Law Enforcement Agencies,” Crime & Delinquency February 2013, 59, accessed December 20, 2015, http://cad.sagepub.com/con- 54 Ibid. tent/59/1/32.refs. 55 Mettler, 21. 57 McDonough. SPRING 2016 | 15 from probation and corrections ofcers, completion checks. Do evaluators know the diference between of community service, residency periods, extra doc- community service and community supervision?60 umentation, meetings with school personnel, and Just as university human resource departments ofcial documents. Of the 98 schools that allow stu- struggle to handle the results of a criminal back- dents to address criminal record concerns during the ground check, so too do admissions committees. admissions process, 61.1 percent require written or According to the ACCRAO Study, of 150 oral statements, 9.2 percent require ofcial docu- institutions, 65.5 percent of admissions decisions in- mentation, and 12.2 percent require something else.58 volving criminal records are made only after a re- Students who attend poorly funded and over-policed view of a special panel or committee, while 19.1 per- schools often do not have adequate access to a college cent will only come to a decision after a background counselor, one of the most infuential individuals in check.61 About a quarter of 247 schools make deci- the college admissions process. sions using only standard admissions ofcers, while 74.7 percent consult external actors for at least some PROBLEMS applicants with criminal records. More than 37 per- Racial inequities persist beyond simply flling cent of the institutions consult campus security, and out the past criminal activity box or self-reporting 44 percent of institutions assembled a special com- interactions with the justice system. Current practic- mittee. Institutions also often consult housing direc- es exacerbate racial biases. Few admissions commit- tors; academic ofcers, including provosts and deans; tees are trained to properly handle criminal records, legal counsel; risk assessment personnel; and coun- and many lack the necessary understanding of the seling and mental health staf.62 criminal justice system to evaluate candidates. When perceived through a racial lens, the Scott Jaschik’s article “Checking Up on Your stigma of crime is often exacerbated. Researchers Past,” helps to illuminate the issues that arise when speaking on National Public Radio noted that those non-experts evaluate information from the crimi- who evaluate applications tend to have preconceived nal justice system.59 He explained that many schools notions of African Americans, as well as overestimate struggle to properly use the information they receive the age of black individuals.63 One 2009 study found from criminal background checks. While universi- that compared to white Americans with criminal re- ties are eager to collect as much material as possible, cords, black American with a clean slate and identical administrators are usually unsure of how to use it. resumes were ofered jobs at the same rate. While the Ann Franke, a higher education legal risk advisor, issue of bias against black applicants with criminal has argued that, “Lots of schools are eager to collect records has not been quantitatively considered with- the info but then not adept at using it.” Furthermore, in the context of undergraduate admissions commit- she asks: tees, it is unlikely that admissions ofcers are immune Who will evaluate the information and make to common and deeply ingrained social prejudices. decisions about individuals’ suitability for employ- Devah Prager of Northwestern University ment or enrollment? What is the impact of a con- contends that this bias is the result of pervasive “media viction more than 10 years old? How do you judge images of black criminals” and high rates of African the relative severity of diferent types of crimes and plea agreements? I picked up a glossary the other day 60 Ibid. of terms commonly used in criminal background 61 American Association of Collegiate Registrars and Ad- missions Offcers and Center for Community Alternatives Survey, 6, Table 9. 58 American Association of Collegiate Registrars and Ad- 62 Ibid. missions Offcers and Center for Community Alternatives Survey, 63 Michael Martin, “Fear of the Black Man: How Racial 7. Bias Could Affect Crime, Labor Rates,” National Public Radio, 59 Epstein. March 30, 2015. 16 | SOUND POLITICKS

American incarceration. In her study analyzing the often identify the wrong person due to similarities efect of race on job applications with noted criminal of names, misreport old ofenses, and classify misde- activity, she found that white applicants with crim- meanors as felonies or vice versa.67 Because college inal records received more favorable treatment than applications have limited fuidity beyond the accep- black applicants with a clean slate. She explained: tance-denial binary, it is unclear whether students Employers, already reluctant to hire Blacks, ap- would have an opportunity to rectify a criminal pear even more wary of Blacks with proven criminal background check mistake or even understand the involvement. Despite the fact that these testers [job reason for their rejection. Moreover, criminal record applicants] were bright articulate college students databases are often incomplete. According to a 2013 with efective styles of self-presentation, the curso- National Employment Law Project report, roughly ry review of entry-level applicants leaves little room 50 percent of the FBI’s criminal history records are for these qualities to be noticed. Instead, the employ- incomplete and fail to include information on the f- ment barriers of minority status and criminal record nal disposition on an arrest. are compounded, intensifying the stigma toward this Colleges do not check student backgrounds group.64 using a uniform system. According to the AC- Problems are exacerbated by untrained ad- CRAO/CCA study, of 43 institutions, 20.9 percent missions committees. According to the New York used “a state-operated database that is accessible to Times: the public,” 20.9 percent used a “single-state [meth- Many schools reacted by taking into account od] requested from a law enforcement agency,” 20.9 minor ofenses like alcohol convictions by applicants, percent used “multi-state [method] requested from a who are often asked to produce ofcial rap sheets. law enforcement agency,” 20.9 percent conducted a These records can contain inaccurate information public information search, 16.3 percent checked an and show juvenile ofenses that have been sealed by ofcial state repository, and 9.3 percent relied on a the courts, which means they should never be viewed private company.68 publicly or used in such a process. Schools often fail The process is problematic and seems to lack to train their staf members in how to weigh criminal future solvency, partly because it applies to so few history information.65 students in the grand scheme of college admissions. The procedural complications of background Through March 6th of the 2013-14 admissions cy- checks should also elicit concerns about the racial cle, 3,765 applicants using the Common Applica- of considering criminal records. Some schools have tion noted that they did have some form of criminal now begun to rely on criminal background checks past—a total of 0.48 percent of applicants. The Di- by private contractors because the process became rector of Communications for the Common Appli- increasingly inexpensive after the September 11th cation added that the number was annually incredi- attacks.66 Recently, The Atlantic investigated and bly small. The Common Application representative summarized several structural challenges to routine posited that in the same way the SAT was potentially background checks. They found that these inves- racist, criminal record inquiries could be perceived tigations frequently contain misinformation. They similarly. However, the representative noted that the college application provides an essay to explain dis- 64 Devah Prager, “The Mark of a Criminal Record,” Amer- ciplinary issues and speculated that experiences with ican Journal of Sociology, Volume 108 Number 5 (March 2003), the criminal justice system could speak to an appli- 943. 65 New York Times Editorial Board. 66 Michelle Natividad Rodriguez and Maurice Emsellem, 67 Bovy. “64 Million ‘Need Not Apply: THE CASE FOR REFORMING 68 American Association of Collegiate Registrars and Ad- CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT,” missions Offcers and Center for Community Alternatives Survey, The National Employment Law Project, March 23, 2011. 3, Table 6. SPRING 2016 | 17 cant’s unique experiences. While those thoughts are Other procedures could also alleviate the racial- optimistic, and certainly echoed by racial equality ized efects of criminal record questioning. Simple advocates, structural barriers to minority applicants bias training has proven useful in other realms of with criminal records likely overwhelm the chances higher education, and might be useful in an admis- that their pasts will be considered fairly.69 sions context.73 To help mitigate bias, criminal re- cord information could also be revealed to admis- FUTURE STUDY AND sions ofcers after a student’s application has already ALTERNATIVE POLICY been considered. Another solution might be to con- In the spring of 2015, New York University an- sider criminal backgrounds using a more dynamic nounced that it would no longer have its admissions approach to afrmative action, in which an appli- ofcers review student criminal history.70 Instead, a cant’s experience with the criminal justice system is special, separate committee was formed to review re- seen as another way of attaining an experientially cords, in hopes that doing so would remove any po- diverse class. tential for bias on the part of admissions ofcers. The One of the easiest ways to ameliorate the prob- admissions committee would only be notifed if an lem of potential racialization of criminal records is to applicant’s record demonstrated potential for being improve transparency. Student ignorance as to how a danger to his or her future classmates.71 The Uni- their criminal records are addressed and handled by versity of North Carolina system pursues a similar various institutions likely increases deterrence and process, as explained by Dickerson. applicant pessimism. Creating a clear process for stu- In October 2006, the University of North Car- dents to both explain past criminal activity and to olina System, drawing heavily from the task force’s understand how that information might afect their recommendations, adopted a detailed “Regulation on applications may help to mitigate the deterrents that Student Applicant Background Checks.” The Regu- may keep many of the country’s most disadvan- lation provides that certain checks, such as cross-ref- taged high school students from applying to col- erencing enrollment at other UNC campuses, be lege. Moreover, it is unfair, perhaps, to assume that conducted for all admitted applicants or all admit- students with little knowledge of the legal nuances ted applicants who indicate...intent to attend. With of the criminal justice system implicitly understand limited exceptions, the Regulation also provides that what should and should not be revealed on a college background checks should be conducted when trig- application. Advertising positive role models of stu- gers or “red fags” are raised. If a background check dents who attended college with criminal pasts could is positive, the Regulation provides guidance about also decrease application deterrence. how admissions ofcers should evaluate the data and Another approach could be to improve the clar- emphasizes the importance of attempting to deter- ity and specifcity of Common Application ques- mine whether the applicant poses “a signifcant threat tions. Rather than asking about crime, inquiries to campus safety. could only ask about violent felonies or sex ofenses. Policies like these represent important steps to- For instance, the Georgia College and State Uni- ward improving admissions processing of applica- versity specifcally asks, “Have you ever been con- tions with criminal record applications.72 victed of a crime other than a trafc ofense, or are

69 Jasmine Garsd, “NYU Changes Its Policy On Review- ing Applicants’ Criminal Background,” National Public Radio, May 26, 2015. 73 Mark E. Engberg, “Improving Intergroup Relations 70 Ibid. in Higher Education: A Critical Examination of the Infuence of 71 Ibid. Educational Interventions on Racial Bias,” Review of Education- 72 Dickerson, pg. 7-8. al Research, Vol. 74, No. 4, (Winter, 2004), 474. 18 | SOUND POLITICKS any criminal charges now pending against you?”74 records. Moreover, a more expansive study would Improving the clarity of questions would reduce the need to account for problems of measuring student chance of discouraging students with minor misde- application deterrence. Nevertheless, improving the meanor records, and who are unlikely to recommit, approach to criminal record is advisable from a util- from applying to college. Moreover, it would create itarian and social perspective. Therefore, further re- a space for institutional preference and reduce the search is also worthwhile. Individuals with criminal cost of criminal background checks for universities records who apply and are accepted to college are since the number of “red fag” applications would be signifcantly less likely to reofend and more likely fltered and reduced. to become active and contributing members of their Transparency also involves informing students communities. Moreover, they carry with them expe- of the reason of their rejection should it be based on riences that add important diversity to university and a criminal background check. According to the AC- social discourse. CRAO/CCA study, only 47 percent of 247 schools reported that applicants are informed of the reason for their denial, while a little less than half of 144 schools provide a mechanism for an appealing a de- cision.75 Full transparency regarding the reason for rejection would allow students to more accurately appeal a decision and explain their criminal record.

CONCLUSION There is an unfortunate gap between the stu- dents that criminal record inquiries seek to weed out and the applicants that they end up dissuading from applying. While these questions are often aimed at sex ofenders and violent criminals, they dispropor- tionately afect minority applicants. These barriers then play into pre-existing complicated and unfair structural barriers for many black students in sec- ondary and higher educational institutions. It is more than likely that criminal past inquiries exacerbate in- equality while doing little to protect student safety. This paper’s analysis is not all encompassing; rather, it identifes a context for how racial inequi- ty is likely magnifed during the college admissions process. Future evaluation using admissions data would be challenging. Colleges would need to reveal the processes they currently use to evaluate criminal

74 “Ga. Coll. & State Univ., Undergraduate Application for Admission at 10,” http://www.gcsu.edu/admissions/undergradu- ate/PDF/Undergrad_appl.pdf (last visited Dec. 24, 2007). 75 American Association of Collegiate Registrars and Admissions Offcers and Center for Community Alternatives, 9, Table 14. SPRING 2016 | 19

REFERENCES viewing Applicants’ Criminal Background.” “American Association of Collegiate Registrars and National Public Radio, May 26, 2015. Admissions Ofcers and Center for Communi- Kaminer Ariel. “3 New York Colleges to Drop Crime ty Alternatives Survey,” American Association Queries for Applicants.” New York Times, Oc- of Collegiate Registrars and Admissions Of- tober 26, 2014. cers and Center for Community Alternatives, Kurt Mitman CV. Accessed December 12, 2015, at: accessed December 20, 105. http://www-local. https://www.dropbox.com/s/n70h6f2jivp3iz2/ legal.uillinois.edu/nacua10/presentations/9F_ KurtMitmanCV.pdf?dl=0 handout.pdf. Gregory Korte. “Obama tells Federal Agencies to Brand, David and Jessica Li. “Penn weighs readmit- ‘ban-the-box’ on Federal Job Applications.” ting sex ofender.” Daily Free Press, October 3, USA TODAY, November 3, 2015. 2007. Losen, Daniel, Cheri Hodson, Michael A Keith II, Bovy, Phoebe Matlz. “The False Promise of Holistic Katrina Morrison and Shakti Belway. “Are We College Admissions.” The Atlantic, December Closing the School Discipline Gap,” The Civ- 17, 2013. il Rights Project, February 23, 2015, http:// “Fact Sheet,” Princeton Students for Prison and Ed- civilrightsproject.ucla.edu/resources/projects/ ucation Reform, accessed December 20, 2015, center-for-civil-rights-remedies/school-to- http://princetonspear.com/fact-sheet/. prison-folder/federal-reports/are-we-closing- Bursed, Brian “How Higher Education Afects Life- the-school-discipline-gap. time Salary. ” U.S. News and World Report, Martin, Michel. “Fear of the Black Man: How Racial August 5, 2011. Bias Could Afect Crime, Labor Rates.” Nation- “Criminal History Background Check Required and al Public Radio, March 30, 2015. FBI Checks Authorized,” NDUS Academic McCabe, Sean, Michele Morales, James Cranford, Programs, August 31, 2011. Accessed Decem- Jorge Delva, Melnee McPherson, and Carol ber 20, 2015. http://www.ndus.edu/uploads/ Boyd. “Race/Ethnicity and Gender Diferences resources/1800/p-511-chbc-required--fbi-au- in Drug Use and Abuse Among College Stu- thorized-8-11.pdf. dents,” Journal of Ethnicity in Substance Abuse. Dickerson, Darby. “Background Checks and the 2007; 6, 2 (2007): 75–95. University Admissions Process” presented at the McDonough, Patricia. “Counseling and College National Association of College and Universi- Counseling in America’s High Schools,” Na- ty Attorneys convention, June 27-30. Accessed tional Association for College Admissions November 15, 2015. http://www-local.legal. Counseling. Accessed December 21, 2015. uillinois.edu/nacua10/presentations/9F_hand- http://www.nacacnet.org/research/research- out.pdf. data/Documents/WhitePaper_McDonough. Dolanksi, Amanda. “Admitted.” The Lantern, No- pdf. vember 13, 2007. Mettler, Suzanne. Degrees of Inequality: How the Engberg, Mark. “Improving Intergroup Relations Politics of Higher education Sabotaged the in Higher Education: A Critical Examination of American Dream.New York: Basic Books, the Infuence of Educational Interventions on 2014. . Racial Bias.” Review of Educational Research, Miller, Kirk. “The Institutionalization of Racial Pro- Vol. 74, No. 4, (Winter, 2004): 473-524. fling Policy: An Examination of Antiprofling Fuchs, Erin. ”7 Surprising Things that could make Policy Adoption Among Large Law Enforce- you a Sex Ofender.” Business Insider, October ment Agencies.” Crime & Delinquency (Febru- 9, 2013. ary 2009). Accessed December 20, 2015.http:// Garsd, Jasmine. “NYU Changes Its Policy On Re- cad.sagepub.com/content/59/1/32.refs. 20 | SOUND POLITICKS

The New York Times Editorial Board. “College Applications and Criminal Records.” The New York Times, March 15, 2015. Prager, Devah. “The Mark of a Criminal Record.” American Journal of Sociology Volume 108 Number 5 (March 2003): 937-975. Price, Jef .“Molester went from jail to Penn Until last week, the college didn’t know that grad stu- dent Kurt E. Mitman was a sex ofender, held in a Bucks prison.” Philadelphia Inquirer, January 18, 2007. “Prospective Students, Additional Admissions Forms, Police Record Check.” St. Augustine Univer- sity. Accessed December 7, 2007. http://www. st-aug.edu/prospective/pdfs/Pol ice_Record_ Check.pdf. Rodriguez, Michelle Natividad and Maurice Emsel- lem, “64 Million ‘Need Not Apply’: THE CASE FOR REFORMING CRIMINAL BACK- GROUND CHECKS FOR EMPLOYMENT,” The National Employment Law Project, March 23, 2011. “School to Prison Pipline Infographic.” American Civil Liberties Union. Accessed December 19, 2015. https://www.aclu.org/infographic/ school-prison-pipeline-infographic. “School to Prison Pipeline Fact Sheet,” PBS. Ac- cessed December 21, 2015. Stevens, Daniel J. and Charles S. Ward, “College Ed- ucation and Recidivism: Educating Criminals is Meritorious,” Journal of Correctional Education Vol. 48, I. 3 (September, 1997): 106-111. “Students with criminal convictions have limited eli- gibility for federal student aid,” Federal Student Aid. Accessed December 21, 2015. https://stu- dentaid.ed.gov/sa/eligibility/criminal-convic- tions#incarcerated. “The Use of Criminal History Records in College Applications: Reconsidered,” The Center for Community Alternatives, Nov. 2010. Accessed December 20, 2015. http://www.communi- tyalternatives.org/pdf/Reconsidered-crimi- nal-hist-recs-in-college-admissions.pdf. SPRING 2016 | 21 FROM THE CLASSROOM TO THE SUPREME COURT THE FEDERALIST SOCIETY, ORIGINALISM, AND THE CONSERVATIVE LEGAL REVOLUTION

BY SEAN CADDEN FOLEY (C’16) MAJORS: POLITICAL SCIENCE & HISTORY

ABSTRACT immensely difcult odds, their organization quick- Today, the Federalist Society is a prominent and ly achieved a level of legitimacy that they could not powerful conservative institution, one that the Re- have imagined. Within a few years, the Society had publican Party reveres and the Democratic Party re- infltrated the Reagan Administration, taking control viles. Yet prior to its founding in 1982, the elite con- of the White House’s legal team. The subsequent Re- sensus was that liberalism had a hegemonic presence publican administrations of George H.W. Bush and in the feld of law. That year, however, a group of George W. Bush only increased the Society’s sig- conservative law students formed the Federalist So- nifcance, making it the clearinghouse for the con- ciety to challenge the liberal orthodoxy. This paper servative legal network. Aside from building a pool argues that the creation of this organization inaugu- of conservative legal talent, the Society also waged rated a conservative legal revolution that has contin- an efective campaign to place its members in the ued to the present day. Before long, membership in White House and the federal courts. Along the way, the Federalist Society became a prerequisite for ap- the organization successfully propagated its judicial pointment to key legal positions in Republican pres- philosophy of originalism, moving it from the fring- idential administrations, and the Federalist Society’s es of academia to the mainstream of jurisprudence. fundamentalist judicial philosophy of originalism be- Throughout this process, the Society became a target gan to reorient the federal courts toward a more con- of the Democratic Party, which criticized the organi- servative direction. Since its formation, the Federalist zation for its immense power and the infuence of its Society has fundamentally reshaped the Republican conservative philosophy, indicating the tremendous Party, the federal judiciary, and American jurispru- success the organization enjoyed. Ultimately, since dence. its inception, the Federalist Society has come to con- trol legal appointments for Republican presidents and THE FOUNDING has fundamentally transformed the American legal In 1982, Steven Calabresi, Lee Liberman, and apparatus and the jurisprudence of the federal courts David McIntosh, a group of young, conservative law through its efective propagation of the theory of students, formed the Federalist Society in an endeav- originalism. Although they might not have realized or to take on the liberal domination of the American it in 1982, Calabresi, Liberman, and McIntosh had legal world. Although these ambitious leaders faced begun a crusade that would revolutionize American law. 22 | SOUND POLITICKS

The Federalist Society formed in 1982 to chal- gle organization we saw was on the left.”4 Liberman lenge what its founders perceived as the liberal he- and McIntosh, who had both maintained a close re- gemony in law schools and the legal profession. Ca- lationship with Calabresi from their undergraduate labresi, McIntosh, and Liberman believed that these years at Yale, therefore established their own chapter institutions were “strongly dominated by a form of of the Society at Chicago.5 With the inauguration of orthodox liberal ideology which advocates a central- the Society, the three co-founders set out to promote ized and uniform society.”1 Calabresi’s inspiration to the conservative cause in the legal world. Their task form the organization came a day after the 1980 pres- would not be easy. The degree of liberal dominance idential election. When a Yale law professor asked was so signifcant that Ralph Winter, a conservative the eighty-eight-student frst-year law class who had Yale Law School professor, agreed to become a facul- voted for Ronald Reagan, Calabresi recalled that only ty advisor for the group despite believing their cause he and one oth- to be “hopeless.”6 er student raised In short order, their hands.2 “Although they might not Winter’s claim Given that Rea- would prove to be gan had won in have realized it in 1982, Cal- mistaken. a landslide, Ca- Since its in- labresi assumed abresi, Liberman, and McIn- ception, the Fed- that others had to tosh had begun a crusade eralist Society has have also voted espoused the the- for the Repub- that would revolutionize ory of original- lican candidate. ism, which despite He consequently American law.” having little trac- surmised that the tion in the legal school’s liberal establishment in orthodoxy had intimidated Reagan voters into si- 1982 posed a direct challenge to prevailing consti- lence, causing him to recognize the need for “an or- tutional theory. This theory stood frmly opposed to ganization to at least encourage [other conservatives] what many conservative legal minds deemed “judicial to come forward.”3 McIntosh and Liberman felt that activism,” whereby judges, beginning with the War- a similar problem existed at the University of Chica- ren Court in the 1960s, would incorporate chang- go. Although Reagan’s dominant victory suggested a ing cultural norms and other outside infuences into nationwide conservative shift, a perplexed Liberman their reading of the Constitution.7 Scholar Jonathan insisted that at the University of Chicago “every sin- O’Neill defnes originalism as holding “that although interpretation begins with the text [of the Constitu-

4 George W. Hicks, Jr., “The Conservative Infuence of the Federalist Society on the Harvard Law School Student Body,” Harvard Journal of Law & Public Policy 29 (2006): 649, 1 “Our Background,” The Federalist Society, accessed accessed May 11, 2015, http://heinonline.org/HOL/Page?han- May 11, 2015, http://www.fed-soc.org/aboutus/page/our-back- dle=hein.journals/hjlpp29&g_sent=1&id=631. ground. 5 Ibid. 2 Terry Carter, “The In Crowd: Conservatives who sought 6 Ibid, 648. refuge in the Federalist Society gain clout,” ABA Journal 87 7 Lorraine Wollert, “Inside Bush’s Supreme Team,” Busi- (2001): 47, accessed May 11, 2015, http://www.jstor.org/sta- ness Week, April 25, 2005, accessed May 11, 2015, https://proxy. ble/27842087. library.upenn.edu/login?url=http://search.ebscohost.com/login. 3 Ibid, 47-48. aspx?direct=true&db=keh&AN=16763385&site=ehost-live. SPRING 2016 | 23 tion], the meaning of the text can be further eluci- The Society’s founders and their faculty advisors, dated by…evidence from those who drafted the text though, were decidedly in the minority with regard in convention as well as from the public debates and to their legal philosophy. Bork recalled that through- commentary surrounding its ratifcation.”8 In the So- out the 1960s and 1970s, he was the only member of ciety’s original statement of principles, the founders the Yale faculty who maintained “an originalist out- articulated a commitment to this theory, stating their look.”15 Thus, the Federalist Society began its work belief “that it is emphatically the duty of the judiciary of promoting an originalist philosophy at a distinct to say what the law is, not what it should be.”9 Im- disadvantage. However, in only a few short years, its portantly, this theory’s mandate for an application of ideas took hold in the Reagan Administration, there- original intent requires a corollary belief: that the Su- by inaugurating the Society’s transformation of the preme Court should attempt to overrule any improp- conservative legal apparatus and the national legal es- er decisions, the “derelicts of constitutional law,” that tablishment. did not adhere to originalism.10 Expounding on this principle, Calabresi recently wrote that according to JOINING THE RANKS OF THE “originalist arguments,” uncritically “following prec- REPUBLICAN ESTABLISHMENT edent is wrong” because it is “necessary to be able to UNDER RONALD REAGAN correct [the Court’s] mistakes by getting them over- After Ed Meese became U.S. Attorney General ruled.”11 Refecting these originalist underpinnings, under Ronald Reagan in 1985, the Reagan Admin- two of the Society’s frst faculty advisors, Robert Bork istration adopted the Federalist Society’s ideas, par- and Antonin Scalia, were prominent proponents of ticularly originalism, as well as its members, there- originalism. In a 1971 essay in the Indiana Law Jour- by transforming the Justice Department (DOJ) into nal, Bork wrote, “the [Supreme] Court’s power is le- a de facto extension of the Society. A few months gitimate only if it has…a valid theory, derived from in to his tenure as attorney general, Meese gave two the Constitution.”12 Forty years later, Bork more speeches in which he declared that the original in- clearly defned his originalist philosophy, “which,” he tent of the Constitution’s framers must guide judg- said, “holds that the Constitution should be read as it es.16 This originalist ideology that Meese preached was originally understood by the framers and ratif- was “the stuf of Federalist Society debates,” asserted a ers.”13 Scalia, too, adhered to the gospel of originalism staf reporter for the journal of the American Bar As- since his time as a student at Harvard Law School.14 sociation (ABA).17 In an interview in the ABA Jour- nal in July 1985, Meese further echoed the Society’s 8 Amanda Hollis-Brusky, Ideas with Consequences: The statement of principles, stating, “[the Reagan Admin- Federalist Society and the Conservative Counterrevolution (New istration] want judges who are interpreters of the law, York: Oxford, 2015), 19. not makers of new law.”18 But Meese went beyond 9 “Our Background,” The Federalist Society, http://www. merely championing the Society’s principles; he ef- fed-soc.org/aboutus/page/our-background. fectively turned the DOJ into a “Federalist Society 10 Steven G. Calabresi, ed., Originalism: A Quarter-Cen- tury of Debate (Washington: Regnery Publishing, 2007), 21. shop,” according to Thomas Smith, one of the Soci- 11 Ibid, 200-207. 12 Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal (1971): 3, accessed May 11, 2015, http://digitalcommons.law.yale.edu/cgi/viewcon- tent.cgi?article=4149&context=fss_papers. 15 Bork, “The Growth of Originalism.” 13 Robert H. Bork, “The Growth of Originalism,” Hud- 16 Debra Cassen Moss, “The Policy and Rhetoric of Ed son Institute, accessed May 11, 2015, http://hudson.org/re- Meese,” ABA Journal 73 (1987): 64, accessed May 11, 2015, search/8111-the-growth-of-originalism. http://www.jstor.org/stable/27842087. 14 Bruce Allen Murphy, Scalia: A Court of One (New 17 Ibid, 65. York, Simon & Schuster, 2014), 38. 18 Ibid, 66. 24 | SOUND POLITICKS ety’s frst members.19 Meese encouraged all lawyers at general, all the Justice Department appointments the Justice Department to join the Society,20 which were career lawyers,” he said.28 Under Meese and his had developed a lawyers division in 1983.21 He also Society deputies, however, candidates’ conservative hired Calabresi, at the urging of Bork, as well as the ideology made them more likely to receive a job in Society’s two other founders—Liberman and McIn- the DOJ.29 Edward Lazarus, a former Supreme Court tosh—to work in the DOJ.22 Moreover, he gave them clerk, said that membership in the conservative Soci- a mandate to develop a Society network within the ety was a “prerequisite for law students seeking clerk- department, whose task would be to organize lists of ships with many Reagan judicial appointees as well conservative attorneys as candidates for political jobs as for employment in the upper ranks of the Justice and federal judgeships.23 Liberman became Meese’s Department and the White House” during the Rea- special assistant for judicial selection,24 and another gan Administration.30 Because Society membership Society member, Steven Markman, led the Ofce of carried a stigma in legal academia in these early years Legal Policy, which screened judicial candidates.25 of its existence, the willingness to avow membership By 1986, half of the political appointees in the DOJ signaled a true commitment to the conservative prin- were members of the Society.26 And in 1987, the ciples that the Society espoused.31 The Reagan Ad- DOJ published a “Report to the Attorney General,” ministration therefore eagerly accepted the card-car- which insisted that judges interpret the Constitution rying members of the Federalist Society. by adhering to the original meaning of the document Moreover, the department’s thorough screen- when the framers drafted it and won its ratifcation.27 ing of judicial candidates for a conservative ideolo- Thus, within roughly two years of becoming Attor- gy was also unprecedented. Former U.S. Attorney ney General, Ed Meese had organized the DOJ into General Nicholas Katzenbach, who served under a virtual arm of the Federalist Society that was com- President Lyndon Johnson, recalled, “Inquiring into mitted to its originalist creed. somebody’s jurisprudence or ideology was never Meese’s integration of the Federalist Society and done with us.”32 Meese, however, was forthcoming its conservative judicial philosophy into the DOJ about the DOJ’s intention to select judges based on amounted to an unprecedented politicization of the ideological purity. The DOJ, he insisted, only want- federal legal establishment. This emphasis on ideol- ed judges “who have the proper judicial philosophy ogy was something new, according to University and approach to the bench, which precludes judicial of Virginia Professor David O’Brien. “Up until this activism.”33 That is, they wanted originalists. Thus, administration, with the exception of the solicitor Ronald Reagan nominated many Federalist Society members to appeals court positions, including Ralph Winter and Richard Posner, who were original 19 Michael Avery and Danielle McLaughlin, The Federal- faculty advisors to the Society chapters at Yale and ist Society: How Conservatives Took the Law Back from Liberals 34 (Nashville, TN: Vanderbilt University Press, 2013), 27. Chicago, respectively. And when Reagan had the 20 Nancy Scherer and Banks Miller, “The Federalist opportunity to fll two Supreme Court vacancies in Society’s Infuence on the Federal Judiciary,” Political Research his second term, notwithstanding the appointment Quarterly 62 (2009): 367, accessed May 11, 2015, http://www. of Associate Justice William Rehnquist as Chief Jus- jstor.org/stable/27759874. 21 Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008), 167. 28 Moss, “The Policy and Rhetoric of Ed Meese,” 67. 22 Ibid, 141. 29 Ibid. 23 Murphy, Scalia, 87. 30 Avery and McLaughlin, The Federalist Society, 23. 24 Ibid, 123. 31 Teles, The Rise of the Conservative Legal Movement, 142. 25 Avery and McLaughlin, The Federalist Society, 25. 32 Moss, “The Policy and Rhetoric of Ed Meese,” 69. 26 Murphy, Scalia, 88n31. 33 Ibid, 66. 27 Ibid, 146. 34 Avery and McLaughlin, The Federalist Society, 22. SPRING 2016 | 25

1982: Steven Calabresi, 1986: President Reagan nominates 1991: President Bush Lee Liberman, and David Antonin Scalia to the Supreme Court, 2005: John Roberts nominates Clarence McIntosh form the marking the frst nomination of a joins the Supreme Court Thomas to the Federalist Society Federalist Society member Supreme Court

1986: President Reagan nominates 1985: Ed Meese becomes 2005: Federalist Society members Leonard 2006: Samuel Robert Bork to the Supreme Court U.S. Attorney General, Reagan Leo, Ed Meese, and C. Boyden Gray produce Alito joins the Administration adopts Federalist a list of eighteen potential nominees to fll Supreme Court Society’s ideas vacancies in the Supreme Court, including John Roberts and Samuel Alito tice, he frst nominated prominent Federalist Society that “he understands that [the Constitution] is a writ- members for each open seat on the Court. ten document, and that its meaning is tied to what its Framers intended.”37 Scalia had passed the origi- ACCESSION TO THE SUPREME COURT nalist test. Overall, she concluded, “his philosophical In 1986, President Reagan nominated Antonin compass points correctly” toward core conservative Scalia, the original faculty advisor for the Federalist principles.38 After Scalia had made his commitment to Society at the Chicago and an avowed originalist, to originalism clear, Reagan decided to nominate him.39 the Supreme Court, marking the frst nomination of a When the Senate confrmed his nomination unani- Society member for the Supreme Court. Scalia’s con- mously, Scalia became the Court’s only originalist.40 servative, originalist bona fdes were the primary ba- Thus, a founder of the Society had helped place one sis for his appointment. In a 1986 Justice Department of the group’s original faculty advisors on the Su- memo, Scalia received recognition as “an articulate preme Court to serve as its frst originalist jurist. With and devoted adherent to the interpretavist [original this momentum, the Federalist Society’s adherents in intent] theory of adjudication.”35 Additionally, his the DOJ soon selected another originalist to serve on Society connections played a key role in his appoint- the Court, but this nomination would have a difer- ment, just as he had played an instrumental role in ent outcome. the early development of the organization. Accord- Following Scalia’s successful confrmation in ing to Stephen Teles, Scalia was “perhaps the most 1986, President Reagan nominated Robert Bork. elite sponsor of the Society in its early years.”36 When Bork, like Scalia, was an original faculty advisor to Liberman and McIntosh were forming the Federalist the Federalist Society and a prominent originalist. His Society chapter at Chicago, Scalia, then a professor nominated furthered the push to place originalist ju- there, agreed to assist them. Now, a few years later, rists on the Court. Bork, whom Calabresi called “the Liberman, who was working on judicial selection at intellectual godfather of originalism,” was chosen the DOJ, returned the favor by concluding her re- principally for his originalist views.41 A 1986 Justice view of his candidacy with an enthusiastic endorse- Department memo lauded him as “the leading spokes- ment. After she reviewed his judicial decisions as a federal appeals court judge, Liberman determined 37 Murphy, Scalia, 123. 38 Ibid. 39 Ibid, 126-127. 35 Murphy, Scalia, 122. 40 Murphy, Scalia, 131. 36 Teles, The Rise of the Conservative Legal Movement, 139. 41 Calabresi, Originalism: A Quarter-Century of Debate, 14. 26 | SOUND POLITICKS man for an interpretavist [original intent] theory of ety…that the Bork nomination was predicated.”49 constitutional law and judicial restraint for over the Unsurprisingly, then, the chief advocates of Bork’s [previous] 20 years.”42 The DOJ also appreciated that Supreme Court nomination were Federalist Society Bork accepted the corollary of originalism, which is members, including founders Liberman and McIn- “a healthy lack of respect for unprincipled precedent” tosh.50 Despite their eforts, though, the Democrat- that did not adhere to original intent.43 And, like Sca- ic-controlled Senate rejected Bork’s nomination.51 lia, Bork beneftted from his relationship with the After another failed nomination, Reagan wanted to Society. When Calabresi formed the Society at Yale choose a non-controversial candidate without ideo- Law School, Bork, then a professor there, agreed to logical baggage. He successfully nominated an ap- help him organize the group and served as a faculty peals court judge from the Ninth Circuit, Anthony advisor.44 Kennedy, who had displayed a conservative ideology Although the Senate confrmed him for a seat on on the bench but whose commitment to original- the federal D.C. Court of Appeals in February 1982 ism was unclear.52 Thus, the Bork nomination failure as the Society was forming, he nonetheless played dealt a blow to the Reagan Administration’s efort to an enormous role in the organization’s development put another originalist on the Court. and success. Bork’s involvement began with his key- In light of Attorney General Ed Meese’s insis- note address at the group’s frst national symposium tence on judges adhering to original intent, Demo- in April 1982,45 which attracted enormous attention crats in the Senate, who were wary of the implications for the Society.46 Perhaps his most important contri- of originalist doctrine for Supreme Court precedents, bution to the Society was convincing Calabresi to rigorously questioned both Scalia and Bork about develop the fedgling group into a national organi- their judicial philosophy. Key factors difered be- zation through which conservative legal minds could tween their respective confrmation proceedings, challenge liberal control over the federal judiciary, a however, which led to diferent results. As previously strategy that already appeared to be working in light documented, the legal consensus at the time was op- of Scalia’s confrmation and Bork’s nomination.47 posed to originalism, and Bork and Scalia were con- Years later, Calabresi said Bork “did more than any- sequently outliers, threats to the existing legal norms. one else…to help create, nourish, and legitimize the The Democrats thus raised serious questions about Federalist Society,” and insisted that “he was, and is, their ftness for the Supreme Court, fearing that they our inspiration, our teacher, and our hero.”48 Further- might threaten sacred precedents, from Brown v. more, during Bork’s Senate confrmation hearings, a Board to Roe v. Wade. Although the Democrats’ University of Chicago professor testifed on the in- concerns about originalism were not unique to Bork, fuence that the Society had on Bork’s nomination. there were three key diferences between the Scalia “Bork’s appointment would substantially help to ef- and Bork confrmation processes: one, Republicans fect the constitutional revolution that has been part controlled the Senate during Scalia’s nomination, of the Reagan plan since he entered ofce,” he said. “Indeed,” he continued, “it is on the commitment to such special interest groups as…the Federalist Soci-

49 U.S. Congress, Senate, Committee on the Judiciary, Hearings on the Nomination of Robert H. Bork to be Associate 42 Murphy, Scalia, 121. Justice of the Supreme Court of the United States, Part 3 Be- 43 Ibid, 121. fore the Committee on the Judiciary, United States Senate, 100th 44 Avery and McLaughlin, The Federalist Society, 2. Cong. 2840 (1987), accessed May 11, 2015, http://www.loc.gov/ 45 Murphy, Scalia, 85-86. law/fnd/nominations/bork/hearing-pt3.pdf. 46 Teles, The Rise of the Conservative Legal Movement, 138. 50 Avery and McLaughlin, The Federalist Society, 27. 47 Murphy, Scalia, 85. 51 Murphy, Scalia, 150. 48 Ibid. 52 Ibid, 151-152. SPRING 2016 | 27 whereas Democrats were in power for Bork’s;53 two, timately, Scalia declared that he had “no agenda.”58 Scalia shied away from answering how his original- Furthermore, the ABA highly recommended Scalia, ist adherence would afect his handling of precedent, stating he was “among the best available” candidates while Bork openly stated his disagreements with key for the Court.59 The Senate approved his nomination Court precedent; and three, Scalia received unani- unanimously.60 Thus, due to the Republicans’ control mous support from the ABA’s Steering Committee of the Senate and his careful evasion of tough ques- on the Federal Judiciary, whereas the committee split tions, Scalia was confrmed. on Bork’s qualifcations. Bork, however, was less convincing and more With a Republican majority in the Senate sup- honest in the face of stricter scrutiny about his orig- porting him, Scalia handled his confrmation hearing inalist views. In a speech Bork gave earlier in 1987, before the Senate Judiciary Committee smoothly. he said, “original intent…will sweep the…preten- Democratic Senator Joe Biden, reacting to the “de- tious and toxic [practice] of non-originalism out to bate recently involving several members of the Court sea.” Democratic Senator Howell Hefin suggested and Attorney General Meese about the so called that this speech “could be construed as…an agenda if original intent doctrine,” questioned Scalia about his [Bork] got on the Court.”61 Then-chairman of the Ju- originalist views and their implications for key prec- diciary Committee, Senator Biden asked Bork about edent.54 “What would this [originalist theory] have the “dozens of cases” that he supposedly had said the meant to the Court that wrote Brown v. Board,” and Court should reconsider. And Senator Kennedy doc- “what should it mean to a Court which is going to umented a previous statement by Bork in which he face reconsideration of Roe v. Wade?”55 Senator Ed- said, “[A]n originalist judge would have no problem ward Kennedy, also a Democrat, likewise asked di- whatever in overruling a non-originalist precedent, rectly, “Do you expect to overrule the Roe v. Wade because that precedent by the very basis of his judicial decision if you are confrmed?” Scalia responded to philosophy, has no legitimacy.”62 In response to these such questions with tactful evasion, insisting that he concerns, Bork stated that he recognized that “stare “would be in a very bad position to adjudicate the case decisis or the theory of precedent is important,” but without being accused of having a less than impartial he nonetheless later asserted that “the Court has got view of the matter.”56 And although he admitted that to work out a better theory” of the principle.63 And he was “more inclined to the original meaning” the- Bork did not completely evade hot-button issues such ory than a more activist approach, Scalia stated that he as Roe v. Wade, a decision, he argued, that “contains “strongly believe[s]” in “the doctrine of stare decisis,” almost no legal reasoning.”64 Democrats attacked this the observation of precedent, while noting that the view and Bork’s previous controversial statements. Court’s decisions “are sometimes overruled.”57 Ul- In his opening statement during the hearing, Sen-

58 Ibid, 38. 53 Editorial Board, “The Great Robert Bork,” Wall Street 59 Ibid, 15. Journal, December 20, 2012, accessed May 5, 2015, http:// 60 Murphy, Scalia, 131. search.proquest.com/docview/1240874240. 61 Hearings on the Nomination of Robert H. Bork to be Asso- 54 U.S. Congress, Senate, Committee on the Judiciary, ciate Justice of the Supreme Court of the United States, Part 3, 449. Hearings on the Nomination of Judge Antonin Scalia, to be As- 62 Hearings on the Nomination of Robert H. Bork to be Asso- sociate Justice of the Supreme Court of the United States, Before ciate Justice of the Supreme Court of the United States, Part 3, 370. the Committee on the Judiciary, United States Senate, 99h Cong. 63 Ibid, 112, 293. 48 (1986), accessed May 11, 2015, http://www.gpo.gov/fdsys/ 64 U.S. Congress, Senate, Committee on the Judiciary, pkg/GPO-CHRG-SCALIA/pdf/GPO-CHRG-SCALIA.pdf. Hearings on the Nomination of Robert H. Bork to be Associate 55 Hearings on the Nomination of Judge Antonin Scalia, to Justice of the Supreme Court of the United States, Part 1 Before be Associate Justice of the Supreme Court of the United States, 6. the Committee on the Judiciary, United States Senate, 100th Cong. 56 Ibid, 37. 184 (1987), accessed May 11, 2015, http://www.loc.gov/law/fnd/ 57 Ibid, 32, 37. nominations/bork/hearing-pt1.pdf 28 | SOUND POLITICKS ator Kennedy castigated Bork as a dangerous ideo- leaders, recognizing that attempting to change the logue who would impose his radical theories on the ABA to be more balanced from the inside would be American people. “In Robert Bork’s America,” Ken- inefective, expressed their hope to “use the Federalist nedy famously stated, “there is no room at the inn for Society as a national conservative legal organization blacks and no place in the Constitution for women, which would [perform many of the functions of the and in our America should be no seat on the Supreme ABA, including] “pronouncements or ratings con- Court for Robert Bork.”65 Ultimately, Bork’s honesty cerning appointments to legal positions.”69 In 1987, about his unpopular views contributed to his defeat.66 following the Bork debacle, the Society’s eforts to He failed to assuage the skeptical Democrats that he counter the ABA increased. Calabresi refected on would not serve as a right-wing ideologue. this uptick, saying, “I think we became much more Furthermore, Bork sufered from a divided rec- interested in being a conservative alternative to the ommendation from the ABA. A key blow to Bork’s ABA after the Bork fght in part because” the ABA’s nomination was the ABA Standing Committee on split review was one of the key factors in his rejec- the Federal Judiciary’s report to the Senate on Bork’s tion.70 Immediately, the Society-dominated Reagan qualifcations for the Supreme Court. Although the White House ended the practice of consulting with report recognized that a majority found Bork “well the ABA on judicial candidates.71 Over time, the So- qualifed,” it mentioned that a signifcant “minority ciety’s infuence would continue to contribute to a concluded that the candidate is Not Qualifed” due, diminished role for the ABA in the judicial selection in part, to his “comparatively extreme views respect- process, just as it would continue to dominate Re- ing Constitutional principles or their application” and publican administrations. concerns “that he would vote to reverse important precedent.”67 Thus, the combination of Democrats’ THE GEORGE H.W. BUSH PRESIDENCY deep concerns about Bork’s originalist views and their In the George H.W. Bush Administration, the implications for Court precedents and the ABA’s di- Federalist Society maintained the tremendous infu- vided recommendation contributed to the Senate’s ence that it had had during Ed Meese’s tenure as at- rejection of Bork’s nomination. This loss, and the torney general in the Reagan Administration. In this ABA’s role in it, galvanized the Federalist Society to administration, the leading person for judicial nomi- provide a conservative alternative to the ABA. nations was White House Counsel C. Boyden Gray, Although the Federalist Society had been op- who served simultaneously as a member of the Soci- posed to the ABA since its earliest days, the failed ety’s board of directors.72 Among his key staf members Bork nomination encouraged the Society to redouble was Society co-founder Lee Liberman, the top staf- its eforts to become a conservative counterweight to er for judicial nominations.73 With a Society-dom- the ABA, which the Society saw as a liberal institution inated legal apparatus, every judicial candidate that and a primary cause of Bork’s defeat. In 1983, a Soci- Bush appointed either was a Society member or re- ety proposal criticized the ABA and state bar associ- ceived approval from the organization.74 Moreover, ations for playing “crucial roles in developing a legal the Bush Administration picked up the mantle of the agenda which sometimes strangles dissent” under the Society’s counter-ABA efort. Although the Reagan cover of non-partisanship.68 A year later, the Society’s

69 Ibid, 168. 65 Ibid, 34. 70 Teles, The Rise of the Conservative Legal Movement, 170. 66 Andrew Peyton Thomas, Clarence Thomas: A Biogra- 71 Tinsley E. Yarbrough, David Hackett Souter: Traditional phy (San Francisco: Encounter Books, 2001), 310. Republican on the Rehnquist Court (New York: Oxford, 2005), 125. 67 Hearings on the Nomination of Robert H. Bork to be Asso- 72 Avery and McLaughlin, The Federalist Society, 30. ciate Justice of the Supreme Court of the United States, Part 1, 1233. 73 Ibid. 68 Teles, The Rise of the Conservative Legal Movement, 167. 74 Ibid, 2. SPRING 2016 | 29

Administration had stopped consulting with the ABA Although Bush selected David Souter, a moder- following the Bork nomination, the Bush Adminis- ate, for the frst open Supreme Court seat during his tration said it would reinstate the practice if the ABA term, he then nominated Clarence Thomas, a com- explicitly indicated that it would not consider ideolo- mitted conservative and Federalist Society member, gy or political afliation when reviewing candidates’ to the Court. When Bush had the opportunity to qualifcations, a consideration which was the basis for nominate a judge to the Supreme Court in 1990, he the ABA’s split Bork review.75 The ABA eventually hoped to nominate a conservative but instead select- agreed to this stipulation. Although the Bush Ad- ed a moderate to preserve his political capital, which ministration did not want the ABA to consider judi- a taxing nomination fght for a conservative judge cial candidates’ ideology, Bush’s team continued the would have depleted.80 Souter was not a staunch con- Reagan Admin- servative, but Bush istration’s policy appointed him of thoroughly “Over time, the Society’s in- with the plan to screening the ju- nominate a bold dicial candidates. fluence would continue to conservative for The Society staf the next Court va- members, led contribute to a diminished cancy.81 Although by Liberman, role for the ABA in the judicial some conserva- extensively re- tive activists were searched the selection process, just as it skeptical of Bush’s candidates’ judi- choice of Souter,82 cial philosophy would continue to dominate Bush honored his to ensure they promise to appoint met the Admin- Republican administrations.” a conservative the istration’s—that next time by se- is, the Soci- lecting Thomas, a ety’s—conservative standards.76 Refecting on the judge for the D.C. Court of Appeals.83 Like Scalia and Society’s immense power in the Bush White House, Bork before him, Thomas beneftted from his com- Second Circuit Court of Appeals Judge Robert Min- mitment to originalism and his ties to the Federalist er lamented that judicial selection was “in the hands Society. When Thomas testifed before the Senate Ju- of those who profess a blind adherence to the doc- diciary Committee in 1990 for his appeals court nom- trine of original intent.”77 It was “well known,” he ination, he revealed his originalist philosophy, stating said, that the Liberman had to approve every federal that he would look to “the text of the [Constitution], judicial appointment.78 Grey’s White House Coun- to the history, to the debates at the signing or in the sel ofce, he added, burned with “the hot fame of ratifcation process.”84 Moreover, the administration’s ideology,” which the Society stafers tended.79 Thus, Society members, notably Boyd and Liberman, high- the Federalist Society largely controlled the George ly respected Thomas.85 And conservatives identifed H.W. Bush Administration’s legal apparatus, just as it him as their champion. Tom Jipping of the conser- had the Reagan Administration’s previously.

80 Thomas, Clarence Thomas, 342. 75 Ibid, 31. 81 Ibid, 342, 353. 76 Avery and McLaughlin, The Federalist Society, 31. 82 Yarbrough, David Hackett Souter, 124. 77 Avery and McLaughlin, The Federalist Society, 31. 83 Thomas, Clarence Thomas, 319. 78 Ibid. 84 Thomas, Clarence Thomas, 323. 79 Ibid. 85 Ibid, 317. 30 | SOUND POLITICKS vative Free Congress Foundation wrote a memo to what my views are on those particular issues would the Bush White House, saying, “Judge Thomas is our undermine my ability to be impartial in those cases.”90 frst choice,” adding, “the entire conservative move- Although the Judiciary Committee initially split 7-7 ment not only supports him, but believes in him.”86 on his vote, due in part to Biden and other Demo- With the approval of the conservative movement, crats’ opposition to placing another conservative on particularly the Federalist Society, Bush nominated the Court, the Senate ultimately confrmed Thom- Thomas for the Supreme Court. as narrowly, 52-48.91 Bush had kept his promise to Just as they had done to Scalia and Bork, Dem- conservatives, and Thomas likewise proved worthy ocrats in the Senate relentlessly questioned Clarence of their support. By 1996, he was a hero on the right, Thomas about his originalist philosophy and its im- and the Society honored him as a true champion of plications for Court precedent. During the confr- their originalist cause.92 Thus, Bush was victorious in mation hearing before the Senate Committee on the the difcult battle he knew he would face by select- Judiciary, Republican Senator Orrin Hatch, himself a ing an originalist for the Court. With Thomas on the Federalist Society member, endorsed Thomas, stating, Supreme Court and other Federalist Society members “Based on a careful review of Judge Thomas’s writ- on the lower courts, Bush left ofce in 1993 having ings and judicial opinions and my personal knowl- bolstered the Society’s infuence. edge of the man, I am confdent that Judge Thomas will interpret the law according to its original mean- THE GEORGE W. BUSH PRESIDENCY ing, rather than substitute his own policy preferences After the interlude of the Clinton Administration, for the law.”87 But it was this commitment to orig- the Federalist Society returned to power in full force inalism that frightened Democrats. When Demo- in the George W. Bush Administration. When Bush cratic Senator Joseph Biden pressed Thomas on his took ofce, the Society dominated his administration originalist philosophy, Thomas said, “the important to a degree that surpassed its control of the Reagan starting point has to be with the debates [the Framers] and George H.W. Bush administrations. The George were involved in and their statements surrounding W. Bush White House placed paramount importance that debate.”88 But he nonetheless insisted that he re- on membership in the Society selecting judges and spected precedent, stating, “My sentiments would be key administration ofcials. At the beginning of the toward a preference for recognizing that there is sig- administration, Bush nominated Society members to nifcant weight to be given to existing case law and three cabinet positions, including John Ashcroft as that the burden is on the judge who wants to change Attorney General, while Ted Olson, a devotee of the that precedent, to not only show why it is wrong, but organization, became the solicitor general.93 A former why stare decisis should not apply.”89 When Demo- administration ofcial recalled that when he was hir- cratic Senator Patrick Leahy questioned him on Roe ing at an executive agency, “we would not only look v. Wade, Thomas defected just as Scalia had during for whether someone was in the Federalist Society his hearing, stating, “I think, for me to respond to but also whether he or she actually attended monthly Society lunches.”94 And Society member Daniel Troy insisted, “everybody, I mean everybody who got a 86 Ibid, 342. 87 U.S. Congress, Senate, Committee on the Judiciary, job [in the Bush Administration] who was a lawyer Hearings on the Nomination of Clarence Thomas to be Associate Justice of the Supreme Court of the United States, Part 1 Before the Committee on the Judiciary, United States Senate, 102nd Cong. 40 (1991), accessed May 11, 2015, http://www.loc.gov/ 90 Ibid, 220. law/fnd/nominations/thomas/hearing-pt1.pdf. 91 Thomas, Clarence Thomas, 382, 450. 88 Ibid, 274. 92 Ibid, 527. 89 Hearings on the Nomination of Clarence Thomas to be As- 93 Avery and McLaughlin, The Federalist Society, 11. sociate Justice of the Supreme Court of the United States, Part 1, 420. 94 Teles, The Rise of the Conservative Legal Movement, 159. SPRING 2016 | 31 was involved with the Federalist Society.”95 More- synonymous when Bush took ofce, and they also over, Leonard Leo, the Society’s executive vice presi- suspected that it exerted undue infuence over the dent, took a leave of absence to advise the administra- nomination process, particularly in light of the Bush tion on judicial nominees.96 Every federal judge that Administration’s decision to stop consulting with the Bush appointed was either a member of the Society ABA. Membership in the Society for judicial nom- or someone whom Society members had approved.97 inees had become a red fag for Democrats. From Additionally, the Bush White House embraced the the outset of Bush’s tenure, Democrats questioned Federalist Society’s counter-ABA efort. During Federalist Society judicial nominees about the orga- Bush’s frst year in ofce, White House Counsel Al- nization and its philosophy.100 In one Senate confr- berto Gonzalez announced that the administration mation hearing, Democratic Senator Richard Durbin would no longer consult with the ABA on judicial observed, “As we try to monitor the DNA of Presi- candidates,98 thereby culminating the Society’s cam- dent Bush’s nominees, we fnd repeatedly the Feder- paign to end the ABA’s role in the nomination pro- alist Society chromosome.” He asked Jefrey Sutton, a cess, at least for Bush judicial nom- Republican ad- inee and Society ministrations. “With Thomas on the Su- member, “Why is it In fact, the So- that membership in ciety received preme Court and other Feder- the Federalist Soci- credit for the ety has become the White House’s alist Society members on the secret handshake decision.99 Thus, lower courts, Bush left office of the Bush nomi- Federalist So- nees for the Federal ciety members, in 1993 having bolstered the court?”101 In anoth- from cabinet er hearing, Senator members to key Society’s influence. ” Durbin insisted that legal stafers, “from what I have wielded tremen- read…[the Feder- dous infuence in the Bush White House, and the So- alist Society has] a very conservative philosophy…I ciety’s infuence was particularly important for Bush’s think they have an agenda.”102 Then, questioning the judicial nominees. motivation behind the White House’s decision to re- By the time George W. Bush entered the White move the ABA from the nomination process, Durbin House, Democrats had begun to attack the Federalist asserted, “it troubles some of us to believe that the Society and to question its impact on the nomination [ABA]…is being cast aside by the White House now process for federal legal appointments. As they had been during the Scalia, Bork, and Thomas nomina- tions, Democrats were skeptical of the originalist ju- 100 Teles, The Rise of the Conservative Legal Movement, 152. dicial philosophy with which the Society had become 101 U.S. Congress, Senate, Committee on the Judiciary, Hearing on Federal Appointments, Before the Committee on the Judiciary, United States Senate, 108th Cong. (2003), ac- cessed May 11, 2015, http://www.gpo.gov/fdsys/pkg/CHRG- 95 Hollis-Brusky, Ideas with Consequences, 154. 108shrg89324/html/CHRG-108shrg89324.htm. 96 Teles, The Rise of the Conservative Legal Movement, 160. 102 U.S. Congress, Senate, Committee on the Judiciary, 97 Avery and McLaughlin, The Federalist Society, 2. Hearing on the Nominations of Michael Chertoff and Viet D. 98 Ann Southworth, Lawyers of the Right: Professionaliz- Dinh to be Assistant Attorneys General, Before the Commit- ing the Conservative Coalition (Chicago: University of Chicago tee on the Judiciary, United States Senate, 107th Cong. (2001), Press, 2008), 140 accessed May 11, 2015, http://www.gpo.gov/fdsys/pkg/CHRG- 99 Carter, “The In Crowd,” 46. 107shrg77953/html/CHRG-107shrg77953.htm. 32 | SOUND POLITICKS when it comes to the judicial process. And, instead, serts, ‘…that it is emphatically the province and duty we fnd that many people who are associated with of the judiciary to say what the law is, not what it the Federalist Society are now seeking prominent po- should be.’ To the extent that [this statement] sug- sitions in the administration of justice. I don’t think gests that judges should not legislate from the bench, it is a coincidence.”103 Durbin demanded an expla- I agree with that interpretation.”107 Dinh likewise ar- nation. “[I]f the Federalist Society is now going to ticulated this philosophy in his hearing, asserting that be the flter for nominations to the Department of he believes “the judges are there to interpret the law, Justice as well as judicial nominations,” he declared, not to make law.”108 Thus, despite their protestations “I hope that [Federalist Society nominees] will come to the contrary, as Caldwell’s and Dinh’s testimonies forward…and clearly state what [their] goal is.”104 In shows, Bush’s Federalist Society nominees adhered to light of the extensive infuence of the Federalist So- the organization’s doctrine of originalism. ciety on the Bush’s nominations to key federal posi- Building of his appointments of Federalist tions, both in the administration and in the courts, Society members such as Dinh and Caldwell to key Democrats attempted to expose what they perceived federal legal positions, President Bush nominated as the Society’s excessive and improper control of the two committed originalists with Federalist Society Bush Administration and its agenda for the courts. credentials—John Roberts and Samuel Alito—to the Despite Democrats’ dogged questions to Bush’s Supreme Court. The Society’s infuence contributed Federalist Society nominees about the philosophy of signifcantly to these nominations. At the time, two the organization, the nominees routinely denied that of the key administration ofcials for judicial selection the Society had any particular ideology. Nonethe- were Kate Comerford Todd and Rachel Brand, both less, they openly articulated their commitment to an important Federalist Society members.109 And in 2005, originalist interpretation of the Constitution, which Federalist Society members Leonard Leo, Ed Meese, was the guiding philosophy of the Society. In Jef- and C. Boyden Gray began to prepare for any po- fery Sutton’s confrmation hearing, Senator Durbin tential vacancies on the Supreme Court and to assist questioned him about the group’s philosophy, asking, Bush judicial nominees.110 The group produced a list “What in your mind is the Federalist Society philoso- of eighteen potential nominees, which included both phy that draws so many Bush nominees to the Federal Roberts and Alito.111 Leo, the executive vice president bench to its membership?” Sutton responded, “I have of the Federalist Society, briefy left the Society and no idea what their philosophy is.”105 In another hear- the group with Meese and Boyden to assist the White ing, Viet Dinh, Bush’s nominee for Assistant Attorney House in judicial selection, where he played a critical General for Legal Policy and a Society member, also role in the nominations or Roberts and Alito.112 denied that the Society had any philosophy, stating, Although Roberts insisted that he did not re- “I do not think it does have a stated philosophy, to my knowledge.” And in a questionnaire, Bush nominee 107 U.S. Congress, Senate, Committee on the Judiciary, and Society member, Karen Caldwell, declared, “I Hearing on Federal Appointments, Before the Committee on am not aware that the Federalist Society has a judicial the Judiciary, United States Senate, 107th Cong. (2001), ac- philosophy.”106 Nonetheless, she stated, “However, cessed May 11, 2015, http://www.gpo.gov/fdsys/pkg/CHRG- in its promotional material, the Federalist Society as- 107shrg80915/html/CHRG-107shrg80915.htm. 108 Hearing on the Nominations of Michael Chertoff and Viet D. Dinh to be Assistant Attorneys General. 109 Michael Avery and Danielle McLaughlin, “How Con- 103 Ibid. servatives Captured the Law,” Chronicle of Higher Education 59 104 Hearing on the Nominations of Michael Chertoff and (2013): B6-B9, EBSCO MegaFILE, EBSCOhost (accessed May Viet D. Dinh to be Assistant Attorneys General. 11, 2015). 105 Hearing on Federal Appointments, 108th Cong. 110 Ibid. 106 Hearing on the Nominations of Michael Chertoff and 111 Avery and McLaughlin, The Federalist Society, 33. Viet D. Dinh to be Assistant Attorneys General. 112 Teles, The Rise of the Conservative Legal Movement, 160. SPRING 2016 | 33 member ever being a member of the Federalist Soci- sonal beliefs. That’s the ideal,” he said.117 When judg- ety, the organization’s 1997-1998 leadership directo- es “go beyond their confned limits,” he added, echo- ry listed him as a member of the steering committee ing Bork’s 1971 article, “they lose their legitimacy.”118 of the D.C. chapter.113 Regardless of his contested But Roberts proclaimed his “respect for precedent that membership status, however, Roberts received the forms part of the rule of law that the judge is obliged support of the Society. Unlike Roberts, Alito was an to apply under principles of stare decisis.” Alito faced avowed member of the Society who had declared his similar questions and gave comparable responses. An- membership on an application to the Reagan White swering a question about his judicial philosophy, de- House in 1985.114 Before nominating Alito, though, spite not accepting a particular label, he expressed the Bush nominated then-White House Counsel Har- originalist doctrine. “I think we should look to the text riet Miers to the Supreme Court, but her nomina- of the Constitution,” he said, “and we should look to tion failed, in large the meaning part due to opposition that someone from Federalist Society “In the end, despite the Dem- would have members, most no- ocrats’ best efforts, Roberts taken from tably Robert Bork.115 the text of Society member Tony and Alito joined their origi- the Consti- Cotto stated bluntly, tution at the “No Fed Society cre- nalist compatriots, Scalia and time of its dentials, that’s going adoption.”119 to hurt you. It hurt Thomas, on the Court.” Regarding Harriet a lot.”116 Thus, p r e c e d e n t , notwithstanding the intermittent failed Miers nomi- Alito asserted, “the presumption is that the Court will nation, Bush nominated two devout originalists with follow its prior precedents. There needs to be a special ties to the Federalist Society to the Court, thereby in- justifcation for overruling a prior precedent.” With creasing the number of originalists to four. regard to the Society, Roberts claimed that he did not Like the Federalist Society nominees to the Su- remember ever becoming a member,120 and Alito re- preme Court who preceded them, both Roberts and ceived few questions about the organization. Senator Alito faced questioning as to their views on original Durbin said to Alito, “I will not get into the Federalist intent. In his confrmation hearings, Roberts expressed Society, because every time I say those words [con- his commitment for an originalist approach, saying, servatives] go into a rage that I am somehow guilty “I resist the labels,” but he nonetheless expressed the of McCarthy-like tactics, asking who are these peo- originalist philosophy. “[Judges] are supposed to… interpret the Constitution according to the rule of law, not their own preferences, not their own per-

117 U.S. Congress, Senate, Committee on the Judicia- ry, Hearings on the Nomination of John G. Roberts, Jr. to be Chief Justice of the Supreme Court of the United States, Part 1 113 Avery and McLaughlin, The Federalist Society, 22. Before the Committee on the Judiciary, United States Senate, 114 Hearings on the Nomination of Samuel Alito to be 109th Cong. (2006), accessed May 11, 2015, http://www.gpo. Associate Justice of the Supreme Court of the United States, Part gov/fdsys/search/pagedetails.action?granuleId=&packageId=G- 1 Before the Committee on the Judiciary, United States Senate, PO-CHRG-ROBERTS&fromBrowse=true. 109th Cong. 456, 756 (2006), accessed May 11, 2015, http:// 118 Ibid. www.loc.gov/law/fnd/alito.php. 119 Hearings on the Nomination of Samuel Alito to be Associ- 115 Teles, The Rise of the Conservative Legal Movement, 160. ate Justice of the Supreme Court of the United States, Part 1, 465. 116 Hollis-Brusky, Ideas with Consequences, 153. 120 Avery and McLaughlin, The Federalist Society, 22. 34 | SOUND POLITICKS ple in the Federalist Society? I will not touch it.”121 to originalists.123 Although the report did not estab- Thus, although the Democrats in the Senate asked lish a causal relationship, its results nonetheless speak few explicit questions about the Society, they con- to the success of the Society in providing a platform tinued the tradition of quizzing Society nominees for conservative judicial philosophy and in moving about their thoughts on originalism and Court prec- the federal courts to the right. Moreover, Scherer edent. In the end, despite the Democrats’ best eforts, and Miller identifed long-term implications of the Roberts and Alito joined their originalist compatri- study. Republican presidents will likely increasingly ots, Scalia and Thomas, on the Court. select the majority of their federal judges from the membership of the Society, they predict, because So- THE LEGACY ciety membership “eliminates…the uncertainty sur- Republican presidents’ eforts to pack the fed- rounding a nominee’s ideology.”124 Ultimately, they eral judiciary with Federalist Society members has contend, if the trend of Republican presidents nom- had a signifcant impact on moving the courts to the inating Society members continues, the Society right. The Society’s members are contributing to the will gradually move closer to “its original goal to realization of the change the way group’s original we, as Ameri- goal of reorient- “The Society’s members are cans, interpret the ing the federal ju- contributing to the realization Constitution.”125 diciary in a more O r i g i n a l i s m , conservative di- of the group’s original goal of c o n s e q u e n t l y , rection toward will become an originalism. Al- reorienting the federal judi- even more formi- though Society dable theory, and members protest ciary in a more conservative its practitioners, that their mem- as they grow in bership means direction toward originalism.” number, will nothing in partic- likewise become ular about their judicial philosophy, Society mem- even more powerful attorneys and jurists. bers do exhibit common voting behavior. In a 2009 By 2006, when Alito joined the Supreme study, political scientists Nancy Scherer and Banks Court, the Federalist Society had established a strong Miller published a study on the impact of Federal- network of conservative lawyers and judges and had ist Society membership on federal judges’ voting acquired complete control over the Republican legal records. They found that, even controlling for po- establishment. Importantly, the Society had expand- litical ideology, Society members had more conser- ed the pool of conservative talent for Republican ad- vative voting records than nonmembers, confrming ministrations to draw from for federal judgeships.126 Democrats’ fears.122 The report explains two possi- Society member Randy Barnett stated, “The Feder- ble reasons for this result: one, the Society attracts an alist Society is the only source of conservative and already very conservative membership, or two, that libertarian intellectual activity in the United States. the Society converts Republican attorneys who join Given that, of course Republican administrations rely

121 Hearings on the Nomination of Samuel Alito to be Associate Justice of the Supreme Court of the United States, Part 123 Ibid, 373. 1, 455-456. 124 Ibid, 375. 122 Scherer and Miller, “The Federalist Society’s Infuence 125 Ibid, 376. on the Federal Judiciary,” 371. 126 Teles, The Rise of the Conservative Legal Movement, 158. SPRING 2016 | 35 on the [organization] for talent.”127 Beyond provid- nalist. That’s no longer true,” he continued. “Origi- ing a conservative talent pool, the Society complete- nalism, which was once orthodoxy, at least has now ly dictated who would be eligible for federal posi- been returned to the status of respectability.”131 In tions. Membership in its ranks was a sine qua non for 2011, Robert Bork wrote that originalism was not conservatives aspiring to federal appointments. One only now a respectable theory, but that it was grow- Society member stated, “You cannot have a conver- ing and approaching preeminence. “[I]t is clear,” he sation in Washington about judges without the Fed- contended, “that originalism is gaining adherents and eralist Society being part of it.”128 Another member may be close to dominance in constitutional schol- claimed, “the Federalist Society has a de facto mo- arship.” And he specifcally attributed this success to nopoly on the credentialing of rising stars.”129 Thus, the group that he had helped form in 1982, stating, by the George W. “One reason [for Bush Administra- the rise of orig- tion, the Federal- “The Federalist Society suc- inalism] is the ist Society had be- ceeded in making its doctrine phenomenal suc- come the pinnacle cess of the Fed- of conservative of originalism a respected, eralist Society.”132 legal network- Indeed, Federalist ing for ambitious mainstream judicial philos- Society member conservative law- John Yoo said yers and Repub- ophy with which it has be- that if he had to lican administra- identify the sin- tions alike. come synonymous.” gle most import- The Fed- ant thing that the eralist Society succeeded in making its doctrine of Federalist Society stood for, it would be “commit- originalism a respected, mainstream judicial philos- ment to Originalism.”133 And the Society’s relation- ophy with which it has become synonymous. Since ship to originalism explains why Democrats evolved its founding, the Society set out to provide a coun- from questioning Society judicial nominees solely terweight to the “liberal jurisprudence” that pre- about originalism to quizzing many of them about dominated in legal academia at the time, principally their membership in the organization and its philos- by promoting the theory of originalism.130 Whereas ophy as well. Thus, the Federalist Society prevailed originalism had been a fringe theory when the Soci- in its efort to make originalism a formidable com- ety frst formed, by the George W. Bush years it had petitor to liberal judicial orthodoxy, and had conse- become an accepted alternative to the liberal theory quently become the scourge of the Democratic Party of a “living Constitution,” which had been the dom- and the liberal legal establishment. inant philosophy. Justice Scalia, speaking at a Society Furthermore, through its role in the appoint- convention, remarked, “I used to be able to say with ment of originalist judges to the federal courts, the a good deal of truth, that one could fre a cannon Federalist Society contributed to the realization of its loaded with grape-shot in the faculty lounge of any original goal of reorienting the federal judiciary in a law school in the country and not strike an origi- more conservative direction. As Scherer and Miller proved, its members who became federal judges ex- hibited more reliably conservative voting behavior 127 Hollis-Brusky, Ideas with Consequences, 154. 128 Hollis-Brusky, Ideas with Consequences, 153. 129 Ibid, 152. 131 Murphy, Scalia, 401. 130 Scherer and Miller, “The Federalist Society’s Infuence 132 Bork, “The Growth of Originalism,” 136. on the Federal Judiciary,” 366. 133 Hollis-Brusky, Ideas with Consequences, 20. 36 | SOUND POLITICKS than even other conservative appointees who were olution mean to you?” Roberts replied, “I think it not members. In 2008, Society co-founder David means a belief that we should interpret the Consti- McIntosh refected satisfactorily on the ideological tution according to its terms.”137 And so this conser- shift of the courts, saying that the federal appeals vative crusade does mean originalism in the courts. courts were more oriented toward conservative ju- Graham just had its name wrong. It was a conserva- dicial philosophy than ever before.134 This conser- tive legal organization, which the Reagan Admin- vative reorientation of the appeals courts had been a istration frst adopted, that had made originalism a long-developing process, and the efort yielded sig- dominant counterweight to liberal theories of juris- nifcant victories in the appointments of Roberts and prudence. And ultimately, it was this organization Alito to the Supreme Court. After the confrmations whose members placed John Roberts and his orig- of Roberts and Alito, the Wall Street Journal wrote, inalism-oriented legal mind on the Supreme Court. “The Alito-Roberts ascendency also marks a victory A revolution had, indeed, swept the legal word. It for the generation of legal conservatives who earned went by the name of the Federalist Society. their stripes in the Reagan Administration. The new justices are both stars of that generation—many oth- ers are scattered throughout the lower courts—and they are now poised to infuence law and culture for 20 years or more. All those Federalist Society sem- inars may have fnally paid of. Call it Ed Meese’s REFERENCES revenge.”135 Similarly, David Kirkpatrick of the New The Federalist Society. “Our Background.” http:// York Times added that the confrmations of Rob- www.fed-soc.org/aboutus/page/our-back- erts and Alito were “the culmination of a disciplined ground. Accessed May 11, 2015. campaign begun by the Reagan administration to Carter, Terry. “The In Crowd: Conservatives who seed the lower federal judiciary with like-minded sought refuge in the Federalist Society gain jurists who could reorient the federal courts” toward clout.” ABA Journal 87 (2001). Accessed May the philosophy of originalism.136 With three origi- 11, 2015, http://www.jstor.org/stable/27842087. nalists now on the Supreme Court and many others Hicks, George W. Jr. “The Conservative Infuence in the lowers courts, the Society’s crusade to move of the Federalist Society on the Harvard Law the federal judiciary to the right had succeeded. School Student Body.” Harvard Journal of Law & Thus, between the Federalist Society’s ofcial Public Policy 29 (2006). Accessed May 11, 2015. beginning in 1982 and the confrmation of Society http://heinonline.org/HOL/Page?handle=hein. stalwart Samuel Alito in 2006, the Federalist Society journals/hjlpp29&g_sent=1&id=631. has radically transformed the American legal land- Wollert, Lorraine. “Inside Bush’s Supreme Team.” scape from academia to the federal court system by Business Week, April 25, 2005. Accessed May infltrating Republican administrations and the fed- 11, 2015. https://proxy.library.upenn.edu/log- eral judiciary. During Justice Roberts’ confrmation in?url=http://search.ebscohost.com/login.aspx- hearing, Senator Lindsay Graham asked him, “When ?direct=true&db=keh&AN=16763385&site=e- it comes to the law, what does the term Reagan rev- host-live. Hollis-Brusky, Amanda. Ideas with Consequenc- es: The Federalist Society and the Conservative 134 Charlie Savage, “Appeals Courts Pushed to Right by Counterrevolution. New York: Oxford, 2015. Bush Choices,” New York Times, October 28, 2008, accessed Calabresi, Steven G., ed., Originalism: A Quar- May 11, 2015, http://www.nytimes.com/2008/10/29/us/29judges. html?pagewanted=all&_r=0. 135 Avery and McLaughlin, The Federalist Society, 12. 137 Hearings on the Nomination of John G. Roberts, Jr. to be 136 Ibid, 22. Chief Justice of the Supreme Court of the United States, Part 1. SPRING 2016 | 37

ter-Century of Debate. Washington: Regnery States, Part 1 Before the Committee on the Judicia- Publishing, 2007. ry, United States Senate, 100th Cong. (1987). Ac- Bork, Robert H. “Neutral Principles and Some First cessed May 11, 2015. http://www.loc.gov/law/ Amendment Problems.” Indiana Law Journal fnd/nominations/bork/hearing-pt1.pdf. (1971). Accessed May 11, 2015. http://digital- Thomas, Andrew Peyton. Clarence Thomas: A Biog- commons.law.yale.edu/cgi/viewcontent.cgi?ar- raphy. San Francisco: Encounter Books, 2001. ticle=4149&context=fss_papers. Yarbrough, Tinsley E. David Hackett Souter: Tradi- Murphy, Bruce Allen. Scalia: A Court of One. New tional Republican on the Rehnquist Court. New York, Simon & Schuster, 2014. York: Oxford, 2005. Moss, Debra Cassen. “The Policy and Rhetoric of Ed U.S. Congress. Senate. Committee on the Judiciary. Meese.” ABA Journal 73 (1987). Accessed May Hearings on the Nomination of Clarence Thomas 11, 2015. http://www.jstor.org/stable/27842087. to be Associate Justice of the Supreme Court of the Avery, Michael, and Danielle McLaughlin. The Fed- United States, Part 1 Before the Committee on the eralist Society: How Conservatives Took the Law Judiciary, United States Senate, 102nd Cong. 40 Back from Liberals. Nashville, TN: Vanderbilt (1991). Accessed May 11, 2015. http://www.loc. University Press, 2013. gov/law/fnd/nominations/thomas/hearing-pt1. Scherer, Nancy, and Banks Miller, “The Federalist pdf. Society’s Infuence on the Federal Judiciary,” Po- Southworth, Ann. Lawyers of the Right: Professional- litical Research Quarterly 62 (2009). Accessed May izing the Conservative Coalition. Chicago: Uni- 11, 2015. http://www.jstor.org/stable/27759874. versity of Chicago Press, 2008. Teles, Steven M. The Rise of the Conservative Legal U.S. Congress. Senate. Committee on the Judicia- Movement: The Battle for Control of the Law. ry. Hearing on Federal Appointments, Before the Princeton, NJ: Princeton University Press, 2008. Committee on the Judiciary, United States Sen- U.S. Congress. Senate. Committee on the Judiciary. ate, 108th Cong. (2003). Accessed May 11, Hearings on the Nomination of Robert H. Bork to be 2015. http://www.gpo.gov/fdsys/pkg/CHRG- Associate Justice of the Supreme Court of the United 108shrg89324/html/CHRG-108shrg89324.htm. States, Part 3 Before the Committee on the Judicia- U.S. Congress. Senate. Committee on the Judiciary. ry, United States Senate.100th Cong. (1987). Ac- earing on the oinations of ichael herto cessed May 11, 2015, http://www.loc.gov/law/ and Viet D. Dinh to be Assistant Attorneys General, fnd/nominations/bork/hearing-pt3.pdf. Before the Committee on the Judiciary, United States Editorial Board. “The Great Robert Bork.” Wall Senate, 107th Cong. (2001). Accessed May 11, Street Journal, December 20, 2012. Accessed 2015. http://www.gpo.gov/fdsys/pkg/CHRG- May 5, 2015. http://search.proquest.com/ 107shrg77953/html/CHRG-107shrg77953.htm. docview/1240874240. U.S. Congress. Senate, Committee on the Judicia- U.S. Congress. Senate. Committee on the Judicia- ry. Hearing on Federal Appointments, Before the ry. Hearings on the Nomination of Judge An- Committee on the Judiciary, United States Sen- tonin Scalia, to be Associate Justice of the Supreme ate, 107th Cong. (2001). Accessed May 11, Court of the United States, Before the Committee 2015. http://www.gpo.gov/fdsys/pkg/CHRG- on the Judiciary, United States Senate, 99th Cong. 107shrg80915/html/CHRG-107shrg80915.htm. (1986). Accessed May 11, 2015. http://www. Avery, Michael, and Danielle McLaughlin. “How gpo.gov/fdsys/pkg/GPO-CHRG-SCALIA/pdf/ Conservatives Captured the Law.” Chronicle of GPO-CHRG-SCALIA.pdf. Higher Education 59 (2013). EBSCO MegaFILE, U.S. Congress. Senate. Committee on the Judiciary. EBSCOhost. Accessed May 11, 2015. Hearings on the Nomination of Robert H. Bork to be U.S. Congress. Senate. Committee on the Judiciary. Associate Justice of the Supreme Court of the United Hearings on the Nomination of Samuel Alito to be 38 | SOUND POLITICKS

Associate Justice of the Supreme Court of the United States, Part 1 Before the Committee on the Judicia- ry, United States Senate, 109th Cong. (2006). Ac- cessed May 11, 2015. http://www.loc.gov/law/ fnd/alito.php. U.S. Congress. Senate. Committee on the Judicia- ry. Hearings on the Nomination of John G. Rob- erts, Jr. to be Chief Justice of the Supreme Court of the United States, Part 1 Before the Committee on the Judiciary, United States Senate, 109th Cong. (2006). Accessed May 11, 2015. http://www. gpo.gov/fdsys/search/pagedetails.action?granu- leId=&packageId=GPO-CHRG-ROBERTS&- fromBrowse=true. Savage, Charlie. “Appeals Courts Pushed to Right by Bush Choices.” New York Times, October 28, 2008. Accessed May 11, 2015. http://www.ny- times.com/2008/10/29/us/29judges.html?page- wanted=all&_r=0. SPRING 2016 | 39 DEGREES OF THE “RESOURCE CURSE” THE CASES OF NORWAY AND SAUDI ARABIA

BY JILLIAN MOELY (N’18) MAJOR: NURSING

ABSTRACT experience the “curse” to the same extent. The pres- The “resource curse,” a phenomenon in which ence of natural resources is not necessarily a death the possession of natural resources impedes a nation’s knell for a nation’s manufacturing sector and overall economic growth, has been widely researched and economic health. A country’s quality of public insti- discussed. The idea that natural resource revenues tutions, history, investment of oil revenues, and hu- can detract from the development of a healthy man- man capital all dictate the extent to which the “curse” ufacturing sector, encourage cyclical fscal policy, afects its economy. A direct comparison of two well and make governments less responsive to the needs established oil exporters, Norway and Saudi Arabia, and wishes of its people is well established. Howev- confrms this variability. This paper will investigate er, much research on the subject fails to recognize the diferences between the two nations and assess that not all nations experience the “curse” in the same the degree to which each has fallen prey to the “re- way or to the same degree. This paper explores how source curse.” history, institutions, policy, and cultural practic- es surrounding the use of natural resource revenues SAUDI ARABIA determine how or if the resource curse afects vari- loal Signicance ous states. To highlight these diferences, the paper As the world’s top oil producer and exporter, compares the treatment of natural resource revenues the Kingdom of Saudi Arabia has a signifcant in- by two major hydrocarbon-exporters: Norway and fuence on global oil trade. Furthermore, the nation Saudi Arabia. holds massive reserves—its crude oil reserves make up about sixteen percent of existing reserves world- INTRODUCTION wide, and its gas reserves are the fourth largest in The “resource curse,” a phenomenon in which the world.1 These holdings provide a bufer against natural research endowments harm, rather than help, fuctuations in production, and allow Saudi Arabia to the nations that possess them, has been the subject of play a large role in global energy supply—the coun- much discussion and scholarly research. The “curse” try can moderate energy prices and act as “swing occurs when the ready availability of natural resource revenue weakens a country’s drive to strengthen its manufacturing sector and to diversify its economy. Although the basic tenets of the theory are fairly un- controversial, it should be noted that not all countries 1 “Saudi Arabia.” U.S. Energy Information Adminis- tration - EIA - Independent Statistics and Analysis. 40 | SOUND POLITICKS producer” in times of oil shortage.2 This infuence reserve of this resource at third largest in the world.8 on the global market can be observed in the current Although extracting this windfall may be difcult landscape of the energy economy: despite a run of (the process requires large amounts of water), Sau- lower oil prices, the Kingdom has not opted to cut di Aramco commissioned the frst successful use of a production. This strategy, some analysts posit, is de- fracking technique that uses carbon dioxide in place signed to drive prices so low that other producers of water in 2014.9 Whether this process can realisti- will cease to proft and cut production.3 Here, the cally be used on a large scale remains to be seen. Kingdom’s low production costs (about four to fve USD per barrel as of late 2014, according to Minister Government Involvement in the Energy Sector of Petroleum and Mineral Resources Ali Al-Naimi) Although oil production in Saudi Arabia was also work in its favor.4 controlled by the Arabian American Oil Company The Kingdom holds additional sway over the (Aramco) after its initial discovery, the Saudi Arabian global energy market as a founding member of the government obtained full ownership of the company Organization of the Petroleum Exporting Coun- by 1988. State purchase of Aramco, which was subse- tries (OPEC). The organization, which aims to “de- quently renamed the Saudi Arabian Oil Company or vise ways and means of ensuring the stabilization Saudi Aramco, introduced a direct channel for collec- of prices in international oil markets with a view to tion of oil revenues (previously, the government had eliminating harmful and unnecessary fuctuations,” derived profts via taxes and monetary concessions sets production quotas for its member countries and paid by foreign oil companies). The Saudi state relies plays an integral part in controlling world oil supply heavily upon oil revenues; in 2013, oil accounted for and prices.5 about 90 percent of the government budget.10 This dependence is partly due to the Kingdom’s limited Supply ability to collect tax revenue: citizens pay only a 2.5 Although some fgures confict, most industry percent religious tax, or zakat, and foreign-owned experts estimate that Saudi Arabian extracted oil re- corporations pay a 20 percent tax on profts.11 serves alone can last anywhere from 65 to 100 years.6 To increase the production period, the Kingdom Economic Diversity and the “Resource Curse” seeks new oil felds on a continuous basis, having Saudi Arabia is the least economically diversi- done so with considerable success in the Red Sea.7 fed state in the Gulf region, and the overall health Saudi Arabia also plans to start investigating the of its economy is unclear. Some analysts note that prospects of shale gas, and some estimates place its the state’s dependence on oil revenue is unsustain- able, as oil prices cannot feasibly keep up with future spending needs: in order to do so, it is estimated that 2 Fattouh, Bassam, and Laura El-Katiri. Energy and Arab Economic Development. United Nations Development Pro- gramme, Regional Bureau for Arab States. 2012. 9. 8 Author calculation 3 “Industry Trend Analysis – OPEC Maintains Produc- 9 “Saudi Aramco Turns Its Sights on Shale.” Shale Gas tion: First Thoughts.” Business Monitor Online. 2014. International. Accessed June 26, 2015.; “Annual Review 2014.” 4 Mufson, Steven. “How Low Can Oil Prices Go? Wel- Saudi Aramco. 2014. 25. come to the Oil Market’s Old Normal.” Washington Post. 10 “Saudi Arabia: 2014 Article IV Consultation – Staff 5 “Statute.” Organization of Petroleum Exporting Coun- Report; Press Release” International Monetary Fund, 2014 (plus tries. 2012. 1. author’s own calculations). 6 Kinninmont, Jane “Future Trends in the Gulf.” Chatham 11 Alsweilem, Khalid A. “A Stable and Effcient Fiscal House Report, The Royal Institute of International Affairs. 2015. Framework for Saudi Arabia: The Role of Sovereign Funds in 16. Decoupling Spending from Oil Revenue and Creating a Per- 7 Fattouh, Energy and Arab Economic Development, 35.; manent Source of Income.” The Belfer Center for Science and “Annual Review 2013.” Saudi Aramco. 2013. 19. International Affairs, Harvard Kennedy School. 2015. 4. SPRING 2016 | 41 they would need to recover to over $100 per barrel fairs; across these categories, a public sector wage bill in the short term, and continue to rise beyond this accounts for 40 percent of spending. Saudi spending level by roughly 5 to 7 percent in the long-term.12 on social programs and healthcare has also risen in When considering other indicators of economic absolute and per capita terms in recent years.15 health, it should be noted that the Kingdom has ex- Reining in cyclical fscal policy palaces the Sau- perienced a fairly high average annual GDP growth di government at risk of large defcits during peri- of 5.7 percent since 1970. However, this growth is ods of low oil prices. Some have suggested that Sau- highly volatile from year to year and refective of the di Arabia might stabilize spending and revenues by Kingdom’s status as a developing country. instituting a Sovereign Wealth Fund (SWF), which Fiscal policy also betrays the nation’s depen- would indefnitely preserve oil revenues for poster- dence. The state prioritizes socially signifcant spend- ity. Although the country’s national bank saves and ing projects—Saudi Arabia has a history of strong invests surplus oil revenues in a Foreign Holdings education, wage, and infrastructure spending—and fund, it is utilized without restrictions to negate any public expenditure has historically ebbed and fowed planned defcit. The fund, which is currently valued with oil prices.13 The Saudi government has tak- at about $733 billion, is probably invested in low-risk, en steps to address this issue, however. The Saudi low-return oferings such as U.S. Treasury bonds (lit- Arabian Monetary tle is known about Agency (SAMA) its exact composi- Vice-Gover- “The ultimate concern, how- tion or governing nor Abdulrahman guidelines).16 Sau- Al-Hamidy claimed ever, is a scenario in which di Arabia also has a that there was natural resource revenues Public Investment steady state spend- Fund, which in- ing throughout the decline indefinitely.” jects excess oil 2008 fnancial crisis, revenue into the and the Kingdom’s local economy via 2015 projected budget outlines a record expenditure commercial business loans.17 Neither of these op- of $229 billion with a planned 5 percent defcit (de- tions, however, allows for the untouched growth of spite a 16 percent drop in revenue from 2014).14 The revenues. In response to complaints about the current 2015 national budget allots 80 percent of all spending investment policy, the Kingdom’s Finance Minister to defense, education, healthcare, and other social af- Ibrahim Alassaf reportedly said that the Kingdom had no plans to create a traditional SWF; in Decem- ber 2014, he stated that he “believe[s] the Kingdom’s 12 “Saudi Arabia’s Economic Diversifcation: Progress in the Context of the GCC and Challenges.” Apicorp Research. Economic Commentary Vol. 8 No. 6 June 2013. 1.; Asweilem, A Stable and Effcient Fiscal Framework for Saudi Arabia: The Role of Sovereign Funds in Decoupling Spending from Oil Reve- nue and Creating a Permanent Source of Income,” 3. 13 “Labor Market Reforms to Boost Employment and Pro- 15 Asweilem, “A Stable and Effcient Fiscal Framework ductivity in the GCC- An Update.” International Monetary Fund. for Saudi Arabia: The Role of Sovereign Funds in Decoupling 2014. 16.; Fattouh, Energy and Arab Economic Development, 21. Spending from Oil Revenue and Creating a Permanent Source of 14 Al-Hamidy, Abdulrahman. “Aspects of fscal/debt man- Income,” 9. agement and monetary policy interaction: the recent experience 16 Ayoub, Joseph. “Saudi Arabia insulated from effects of Saudi Arabia.” BIS Paper 67v (2012). 305.; “Press Release: of lower oil prices.” United States Energy Information Agency. Recent Economic Developments and Highlights of Fiscal Years 2015. 1435/1436 (2014) & 1436/1437 (2015)” Kingdom of Saudi Ara- 17 “Public Investment Fund (PIF)” Kingdom of Saudi bia Ministry of Finance, 2014. 1. Arabia Ministry of Finance. 2015. 42 | SOUND POLITICKS policy is most suitable for its circumstances.”18 workers, while more than 80 percent of employed Fiscal policy is not the only means through Saudi nationals work in the public sector (which of- which the Saudi government seeks to diversify and fers superior pay and benefts).23 Although the gov- strengthen its economy: in an attempt to devel- ernment strives to create public sector jobs for its op forward linkages, Saudi Arabia refnes part of its citizens, 11.725 percent of Saudi nationals was un- enormous natural resource boon into various petro- employed in 2014 as compared to only 0.45 percent chemicals. The state-owned Saudi Basic Industries of non-Saudis, who constitute about a third of the Company (SABIC) was created in 1976 to oversee population.24 this component of the oil and gas sector, and was the The Kingdom also spends oil revenue on fuel world’s fourth largest chemical producer in 2013.19 subsidies for residents. In June 2015, one gallon of The rapid growth and development of the petro- gasoline cost about $0.60 in Saudi Arabia (in compar- chemical industry rendered it a valuable asset to the ison, the world average was about $4.2 per gallon in Saudi economy—in 2010, petrochemicals accounted the same period).25 In 2013, the International Mon- for more than 60 percent of the Kingdom’s non-oil etary Fund (IMF) estimated that government losses exports.20 Saudi Aramco currently has the sixth larg- to subsidies amounted to approximately 10 percent est refning capacity in the world, and has recently of Saudi Arabia’s GDP, and other analysts state that partnered with foreign oil companies in ownership such subsides not only cut into revenue but also dis- and development of new refneries that will bring tort market signals and encourage wasteful energy total chemical production capacity to more than 15 use.26 The latter is particularly problematic, as Saudi million tons per year.21 per capita energy consumption rates are among the The ultimate concern, however, is a scenario in highest in the Gulf region and twelfth highest in the which natural resource revenues decline indefnitely. world. Concern has been expressed over this rank- Although Saudi Arabia has the advantage of low-cost ing; a controversial 2012 Citibank report suggested production levels, the future may see a prolonged that the country could be a net oil importer by 2030 decrease in oil prices: the rise of renewable energy if demand continues to grow.27 Chief Executive Of- sources, as well as new producers and improved (i.e., fcer of Saudi Aramco Khalid Al-Falih stated (perhaps cheaper) extraction techniques for unconventional more realistically) that demand could be 2.75 higher resources could threaten Saudi economic health.22 than present levels by 2030 if no improvements in energy efciency are made. 28 Social/Civil Aspects of Oil Consumption and Revenue Use Saudi Arabia’s labor sector is a major compo- nent of federal spending. Many entry-level private 23 Ibid, 9. sector jobs are flled by expatriate and immigrant 24 “Estimates of Population by Sex and Nationality,” Kingdom of Saudi Arabia Central Department of Statistics and Information. 2014.; “Quarterly Unemployment Rates 2014.” Kingdom of Saudi Arabia Central Department of Statistics and 18 Rashad, Marwa, and Andrew Torchia. “Saudi Finance Information, 2014.; “Labor Market Reforms to Boost Employ- Minister Says No Need to Create Sovereign Wealth Fund.” Reu- ment and Productivity in the GCC- An Update.” International ters. December 26, 2014. Monetary Fund. 2014. 19 “C&EN’s Global Top 50 Chemical Firms For 2014.” 25 “Saudi Arabia.” U.S. Energy Information Adminis- Chemical & Engineering News. tration - EIA - Independent Statistics and Analysis.; “Gasoline 20 Fattouh, Energy and Arab Economic Development, 34. prices, July 6, 2015.” GlobalPetrolPrices.com 21 “Refning and Chemicals.” Saudi Aramco. Accessed 26 “Saudi Arabia: 2014 Article IV Consultation – Staff June 26, 2015. Report; Press Release,” 13.; Fattouh, Energy and Arab Economic 22 Asweilem, “A Stable and Effcient Fiscal Framework Development, 27. for Saudi Arabia: The Role of Sovereign Funds in Decoupling 27 Ibid., 58. Spending from Oil Revenue and Creating a Permanent Source of 28 “Saudi Arabia.” U.S. Energy Information Administra- Income,” 10-11. tion - EIA - Independent Statistics and Analysis. SPRING 2016 | 43

These factors, among others, account for the lion cubic feet/year—and as of December 2014 Sta- spending and investment patterns of Saudi Arabia’s toil planned to invest about $2.9 billion in expansions oil revenue. Although some are more potential- that would link the refnery to two additional wells.31 ly damaging than others (i.e., high unemployment and energy consumption rates), all contribute to the Supply Kingdom’s current economic state. Data from the Norway Petroleum Directorate (NPD) show that Norway’s oil production peaked in NORWAY the early 2000s and will stay at its current levels until loal Signicance 2030. Natural gas production, on the other hand, has Norway, Europe’s largest oil exporter and re- generally risen since its initial discovery. As of 2013, serve-holder, was the world’s twelfth largest net ex- recoverable reserves were estimated at 14.1 billion porter of oil in 2013 and the third largest exporter of Sm3 boe (66 percent of which has already been ex- natural gas in the world following Russia and Qatar. tracted).32 Norway’s fuel exports (most of which go to Euro- Norway continues in its exploration eforts to- pean countries and the United States) play a particu- day, with sustained exploratory drilling in the North larly important part in the European Union’s energy Norwegian and Barents seas. Potential well sites supply. Because one of Norway’s major refneries increased in number after the nation resolved a de- operates in compliance with strict EU environmen- cades-long maritime border dispute with Russia in tal controls, it serves as a main source of gasoline and 2011. The two countries decided to split the disputed diesel to member 175,000 km2 area countries.29 Fur- of the Barents thermore, Nor- “Norway has frequently been Sea nearly equal- way possesses an hailed as a paragon of natural ly, and Norway extensive subsea consequent- pipeline system resource governance in schol- ly gained access that transports oil to an addition- domestically and arship on the ‘resource curse.’” al 54,000 square abroad to various miles of conti- European consumers. Pipelines transport products nental shelf.33 from felds to refneries, as well; one international Exploration is ongoing in other areas of the Barents pipeline, Norpipe, boasts a capacity of 913,000 bbl/ Sea, as well; somewhat controversially, Norway of- day and serves as a direct line to a refnery in Tees- fered new leases for exploration of the Arctic region side, England. in early 2015. This occurred after the announcement Norway’s strong domestic refning presence that Arctic ice ledges have receded, opening up more works in tandem with its international refning ac- territory for drilling. However, opponents of the tivities. It possesses two major refneries with a com- move have expressed concern over further drilling bined crude oil refning capacity of 319,000 barrels in the face of receding ice levels. A study published per day.30 Liquefed natural gas (LNG) is produced at Statoil’s Melkoya facility, which the U.S. EIA de- scribes as “the frst large-scale LNG export terminal 31 “Statoil plans Hammerfest LNG investment.” LNG in Europe.” Melkoya produces at capacity—200 bil- World News. December 2014. 32 “Recoverable reserves per 31.12.2014,” Norwegian Petroleum Directorate. 2015. 33 “Norway.” U.S. Energy Information Administration - 29 Ibid. EIA - Independent Statistics and Analysis.; “Norway and Russia 30 Ibid. offcially split Barents sea.” World Oil. 2011. 44 | SOUND POLITICKS in January 2015 found that extraction of Arctic oil gon of natural resource governance in scholarship reserves (which could contain up to 22 percent of the on the “resource curse.” Although crude oil, natural world’s undiscovered conventional oil and natural gas, and pipeline services accounted for 52 percent of gas resources) would cause global warming beyond Norway’s exports in 2012, they constituted less than the set 2°C limit.34 a third of government revenues and only 23 percent Observing its unconventionally extracted re- of GDP.39 Furthermore, Norway’s fscal policy is sources, Norway is fairly undeveloped. The preva- minimally volatile due to its 4 percent spending rule. lence of conventional supply limits development of The nation also displays higher-than-average GDP other forms of oil and gas at the moment.35 growth: GDP per capita measured in purchasing power parities has increased from 5 percent below Government Involvement in the Energy Sector the OECD average in 1970 to 70 percent above the The central government of Norway has histori- average in 2010, and Norway’s GDP per capita has cally played a strong role in its country’s energy sec- been higher than that of its highly-similar neighbor tor. The government proclaimed sovereignty over Sweden since the 1970s. Oil, it appears, is at least the Norwegian continental shelf after the frst dis- somewhat responsible for these fgures; some econ- coveries and required that all oil companies procure omists estimate that oil and gas revenues account for exploratory and production licenses from the King.36 20 percent of Norway’s GDP per capita growth.40 After oil was eventually discovered by foreign cor- With a robust economy, a stable central govern- porations, the Norwegian government increased its ment, and a top ranking on the U.N. Human De- share of natural resource revenues by creating state- velopment Index, Norway’s use of natural resource owned oil company Statoil in 1972. Today, the gov- revenues seems paradigmatic.41 ernment owns 67 percent of the company. However, some oil-related issues can be detect- Due to instability in oil revenues throughout ed upon closer study of the nation. While Norway the 1970s and 1980s, the Norwegian government shows undeniable signs of health, some symptoms of decided to institute a sovereign wealth fund: legis- the so-called “resource curse” are present. In contrast lation creating what is now known as the Govern- to its Danish, Finnish, and Swedish neighbors, Nor- ment Pension Fund Global (GPFG) was signed into way has failed to develop large technological com- law in 1990. All of the fund’s investments are abroad, panies such as Bang & Olufsen, Nokia, LM Ericsson, and only its real return (approximately 4 percent) is and Volvo. Furthermore, the nation has an “almost spent on paying the structural non-oil defcit; this stagnant” ratio of exports of goods and services to way, the government spends none of the actual oil GDP (implying that oil exports have encroached revenue and uses only investment returns to balance upon other exports).42 A typical system of the “re- the economy. 37 38 source curse”—the appreciation of currency due to Economic Diversity and the “Resource Curse” increased public consumption of both foreign and Norway has frequently been hailed as a para- domestic goods in an economy receiving stimulus from oil revenues—is observable when analyzing

34 McGlade, C. and P. Ekins, The geographical distribu- tion of fossil fuels unused when limiting global warming to 2°C, 39 “Norway.” U.S. Energy Information Administration - Nature. DOI: 10.1038/nature14016.; “Arctic Oil and Natural Gas EIA - Independent Statistics and Analysis. Potential”, U.S. Energy Information Administration. 2009. 40 Mideksa, T. The economic impact of natural resources. 35 “Table 1: Europe shale statistics.” Petroleum Econo- Journal of Environmental Economics and Management 65 (2), mist. 277- 289. 2012. 1. 36 “Norway’s oil history in 5 minutes.” 41 “Norway.” United Nations Human Development Re- 37 “History”, Norges Bank Investment Management. ports. 2014. 38 “About the Fund,” Norges Bank Investment Manage- 42 Gylfason, Thorvaldur, “Norway’s wealth: Not just oil.” ment. VOX, CEPR’s Policy Portal. 2008. SPRING 2016 | 45

NORWAY SAUDI ARABIA EXPORTS Mineral products (i.e. hydrocarbons and byprod- Mineral products made up 90% of exports in ucts) accounted for 63% of exports in 2013; petro- 2013; petrochemicals and plastics made up an chemicals made up 3% additional 6%

The remaining 34 of exports were largely in fsh, The remaining 4% was in aluminum prod- nuclear reactor parts, ships, aluminum products, ucts, electrical machinery, ships, vehicles, electrical machinery, medical equipment, and nuclear reactors, precious stones, and miscel- various food, clothing and animal products laneous food and household products PRODUCTION OUTLOOK Gas production/exports rising, oil production Oil supply ample; production more reliant upon and exports peaked around 2001 political/economic needs and OPEC participa- tion. Gas production rising, but none is exported GLOBAL POSITION World’s third-largest exporter of both dry natural OPEC member and world’s top exporter; gas and crude oil; hold’s the world’s 19th largest hold’s the world’s largest crude oil reserve and oil reserve and 14th largest natural gas reserve. 5th largest natural gas reserve. UNCONVENTIONAL RESOURCES Minimal Fracking with carbon dioxide replacement ofshore DEPENDENCE ON OIL REVENUE Hydrocarbon revenue accounted for 30% of Hydrocarbon revenue accounted for 90% of government revenue in 2012 government revenue in 2012 SOVEREIGN WEALTH FUND GPFG – no more than 4% of the fund (i.e. the The Foreign Holdings Fund invests oil surpluses real return) spent annually to balance structural abroad, but has no spending rule and sees minimal non-oil defcit returns FISCAL POLICY Spending has been minimally cyclical; money Spending historically has been cyclical, from the GPFG’s real return (not direct oil reve- although recently expenditures have remained nue) balances budget constant or even increased in downturns 46 | SOUND POLITICKS

Norway’s wage levels. In 2012, hourly wage costs Other concerns about the dominance of ex- in the manufacturing sector were 69 percent high- tractive industries in the Norwegian economy extend er than those of Norway’s EU trading partners. The to the prevalence of forward and backward linkages. manufacturing sector has also contracted somewhat Norway quickly repurposed its pre-oil industry sta- in past years, although there is some evidence sug- ples (shipping, etc.) to support the petroleum sector gesting the same contraction can be observed in after the discovery of oil and gas deposits. Although countries such as the United States and Germany the oil sector itself supplies only 2 percent of the and is not, therefore, indicative of the oil sector’s country’s employment, related industries account for infuence.43 Finally, Bjørnland and Thorsrud found roughly four times as many jobs. Beside their role evidence of a “two-speed economy” within Nor- in employment, oil and gas prices are crucially con- way, with “non-tradeables growing at a much faster nected to Norwegian consumer confdence. “The pace than tradeables.” They did not, however, fnd return from the Fund cannot compensate for the any evidence of “Dutch disease;” i.e., the “resource reduction in domestic demand for input to the pe- curse.”44 troleum sector,” one 2013 University of Oslo report stated. The report continues: “In that sense, the grad- ual increase over time in deliveries to the petroleum 43 Holden, “Avoiding the Resource Curse: The Case Nor- way,” 5. sector in Norway has made the Norwegian econo- 44 Bjørnland, Hilde C. and Leif Anders Thorsrud. “Boom my more vulnerable to the reduction in petroleum or gloom? Examining the Dutch disease in a two-speed econ- omy” Center for Applied Macro- and Petroleum Economics, Norwegian Business School. 2013. SPRING 2016 | 47

NORWAY SAUDI ARABIA EMPLOYMENT ISSUES Wage appreciation in attempt to keep up with oil Expatriate hiring outpaces hiring of nationals sector salary rate MANUFACTURING SECTOR Slightly shrunken, not appreciably more than Exclusively built on oil sector forward linkages – those of industrialized countries such as Germa- large refning presence, and petrochemicals ny and the U.S. represent a large portion of non-oil exports HUMAN CAPITAL High (constituting up to 80% of total national Low/moderate: education rates are rising wealth, according to Lindholt article) quickly, but the workforce still underequipped activity which inevitably will come.”45 The IMF also IMF has suggested several structural reforms. Staf noted that falling oil prices could reduce demand for members suggest that Norway simplify its income goods and services, as well as cause a “signifcant re- tax system to encourage non-oil sector investment, duction in housing prices.”46 reform pensions to boost labor force participation, Finally, the IMF has raised concerns about the and remove labor market rigidities (among others). efectiveness of Norway’s recent fscal policy. Be- According to the 2014 Article IV report, Norwegian cause Norway’s structural non-oil defcit has recent- ofcials agreed that these reforms would increase ly amounted to less than the 4 percent real return competitiveness and facilitate the move away from on the GPFG, IMF ofcials noted that introducing oil and gas driven demand in the nation’s economy; stimulus into an economy that is near capacity is not currently, compliance with the recommended ac- ideal. In 2014’s Article IV Report, they recommend tions is being planned.48 that Norway spend only the amount necessary to balance the budget in order to “set a neutral fscal Social/Civil Aspects of Oil Consumption and Revenue Use stance.” According to the report, Norwegian author- Despite the issues outlined above, Norway is ities “recognize[d] the risk of excessive fscal stimulus an important example of efcient resource manage- from spending too large a fraction of GPFG assets… ment. Part of its success is likely attributable to the however, they placed greater emphasis on reducing nation’s economic status prior to the introduction of the overall tax burden as a means of promoting com- oil revenue into the economy: Norway already had a petitiveness.”47 strong central government and welfare state in place In order to combat some of these symptoms before the discovery of oil, as well as a model for and shift from reliance on oil and gas demand, the treatment of natural resource revenues. Before pe- troleum and natural gas, Norway was highly depen- dent on exports of fsh and lumber and possessed a 45 Holden, “Avoiding the Resource Curse: the Case Nor- way,” 15. 46 “Norway: 2014 Article IV Consultation – Staff Report; Press Release,” 15. 47 Ibid,, 16. 48 Ibid,, 24. 48 | SOUND POLITICKS well-developed shipping sector.49 volume of oil they produce. Saudi Arabia produc- However, some economists argue that its pre-ex- es about 6.1 times and exports about 4.7 times the isting economic structure did not have as much to amount of oil Norway does in a day and, therefore, do with Norway’s success in managing oil resourc- plays a larger part in the world’s total energy supply. es as did the role of its human capital. Lars Lindholt As indicated earlier in this study, the nation often acts wrote in a 2000 report on total national wealth that as a swing producer and has considerable sway over “the most important economic resource throughout global pricing. Norway’s oil and gas reserves stand at the period [1930-95] was a highly qualifed labour 2.2 and 25 percent of Saudi Arabia’s holdings respec- force, varying from 60 to 80 percent of the total na- tively, and pale in comparison.52 However, Norway tional wealth in most years.”50 Gylfason, in a similar has the upper hand in production of natural gas.53 argument, points out that surrounding Scandinavian The price of production in each country difers countries have demonstrated fscal growth almost as as well. The Saudi production cost of $4 to $5 per great as Norway’s despite their lack of oil and gas barrel is slightly lower than the average cost within deposits. This growth, it has been suggested, is a di- Norway, which is about $6.57 before transportation rect result of a highly educated labor force; Norway’s expenses.54 This variance also allows Saudi Arabia to success can be attributed not only to oil but also to play a larger role in global oil pricing. That is, it can the skills of its population. Thanks to the combina- act as a “swing producer” and continue to produce tion of its natural resource endowments and human during periods of lower prices without sustaining capital, Norway’s economy is slightly stronger than losses as great as those experienced by countries with those of its peers despite the fact that the average higher production costs. Norwegians work fewer hours than their Scandina- vian counterparts.51 Government Involvement in Energy Sector Despite the diferences between their natural COMPARISON resource sectors, the two nations share basic gov- The fscal policies of Saudi Arabia and Norway ernment structures: both are monarchies and welfare are, and have been, strongly infuenced by the con- states with expansive public sectors. Both provide siderable presence of considerable natural resource universal health care, an extensive social securi- deposits. There are some similarities between the ty system, and free or highly subsidized education. two nations, but difering production volumes, his- Furthermore, each government employs roughly a tories, and fscal policies account for their disparate third of its employed citizens. In Norway 34.6 per- economic conditions. cent of the employed work for the public sector; about 30 percent do in Saudi Arabia.55 Rates and loal Signicance volumes of public expenditure vary, given the dif- Saudi Arabia and Norway each play large roles in fering population and development levels between the global oil market, but difer in both the type and the two countries. Saudi Arabia plans to spend about 63 percent of its budget of $144.1 billion on ser-

49 Cappelen, Ådne and Mjøset, Lars. “Can Norway Be a Role Model for Natural Resource Abundant Countries?’ in 52 Author calculations from EIA Country pages Development Success: Historical Accounts from More Advanced 53 Ibid. Countries, edited by Augustin K. Fosu. 44-72. Oxford: Oxford 54 Mufson, Steven. “How Low Can Oil Prices Go? University Press. 2013. 50. Welcome to the Oil Market’s Old Normal.” Washington Post. 50 Lindholt, Lars. “On Natural Resource Rent and the Accessed June 26, 2015.; “2014 Annual Report on Form 20-F.” Wealth of a Nation: A Study Based on National Accounts in Nor- Statoil. 2014. way 1930-95.” Statistics Norway, Research Department. Discus- 55 “Country Fact Sheet: Norway.” OECD, Government at sion Papers No. 281, August 2000. a Glance. 2015; “Labor Market Reforms to Boost Employment 51 Gylfason, “Norway’s wealth: Not just oil.” and Productivity in the GCC – An Update,” 9. SPRING 2016 | 49 vices such as education and healthcare in 2015, while nation’s history and the consequent growth of the Norway has scheduled out 72 percent of its total of “intergenerational equity” concept, Saudi nationals $106.74 billion worth of expenditures for the same prefer public sector jobs, which ofer excellent sal- use.56 However, the two nations collect their revenue aries and benefts, while expatriates tend to fll most from diferent sources. Oil revenues provide Saudi private sector jobs. Today, almost 12 percent of Sau- Arabia with about 90 percent of its total government di nationals remain unemployed, while less than half revenue, so money for civil expenditures is directly of a percent of expatriates do. supplied by the energy sector. In Norway, however, GDP growth is another area in which oil can the opposite is true: revenues for public expenditure afect the economy of oil-exporting states. While are largely collected from other areas (notably via Norway’s GDP growth has generally been consistent the comprehensive tax system applied by central and and healthy since the creation of the GPFG, Saudi local governments), and essentially no oil revenues Arabia has experienced comparatively large swings are spent. Instead, these monies are funneled into the in GDP growth. In 2011, for instance, Saudi Arabia’s Government Pension Fund Global, of which only annual GDP growth was 10 percent; in 2013, it had the real return is spent. Norway, then, spends essen- fallen to 2.7 percent. In contrast, Norway’s growth tially none of its oil revenues and collects revenues in the same years was 1 and 0.7 percent. It should be through taxes, while Saudi Arabia taxes its citizens noted, however, that Saudi Arabia’s status as a more essentially nothing beyond the zakat and spends its recently developed country plays a part in this phe- SAMA Foreign Holdings reserves whenever and in nomenon. whatever degree required. This crucial diference ac- Finally, each country struggles with shrunken counts for the cyclicality of Saudi Arabia’s fscal pol- and/or oil-dependent manufacturing sectors. Unlike icy. neighboring Scandinavian countries, Norway lacks large, globally known companies. Furthermore, de- Economic Diversity and the Resource Curse mand in its mainland economy depends heavily on Both nations have relatively strong economies oil prices. Saudi Arabia faces its own set of challeng- at the moment, but the sustainability of their respec- es: almost all of its manufacturing is oil-based. This tive fscal policy is questionable. Furthermore, each extreme dependence on oil resources is not necessar- faces specifc oil-related economic issues. ily sustainable in the long run, and contributes to oil Norway and Saudi Arabia both display worry- pricing-dependent economic health. ing employment trends. Norway’s issue is directly In order to solve these issues and move away related to oil; because wages for workers in the oil from oil dependence, the IMF recommends that both sector rise much more quickly than wages in other countries take steps to make their economies global- sectors, overall salaries have increased as other em- ly competitive. Norway has been advised to simplify ployers attempt to match petroleum sector com- its income tax system, reform pensions so as to boost pensation. Wage appreciation hampers Norway’s labor force participation, and remove labor market competitiveness as a nation and discourages inter- rigidities to encourage outside investment and busi- national business interests, hurting any attempts to ness prospects. Saudi Arabia has received similar rec- move away from an oil-based growth model in the ommendations: the Kingdom should invest further long term. Saudi Arabia struggles with its own set of in both human capital and infrastructure, and work employment issues. Given the oil boom early in the toward the creation of a more transparent and secure business environment.

56 “Budget 2015.” Royal Norwegian Ministry of Fi- Historical and Social Context of Oil Development nance. 2014.; “Press Release: Recent Economic Developments and Highlights of Fiscal Years 1435/1436 (2014) & 1436/1437 The vast historical diferences between the (2015),” 2. Kingdom of Saudi Arabia and Norway can perhaps 50 | SOUND POLITICKS account for their varying fscal policies. Norway was of the “resource curse” to difering extents: Saudi a well-established (if relatively poor) nation when Arabia’s unstable GDP growth, unemployment is- oil was discovered; its small yet well-functioning sues, and worrisome reliance on one type of revenue economy exported natural resources such as fsh and are somewhat more problematic than the wage ap- timber, and featured a developed shipping industry. preciation and oil and gas reliant mainland economy Perhaps most importantly, the nation already had demand Norway has experienced. As the respective an extensive welfare system in place prior to oil and cases of Saudi Arabia and Norway show, it is wise natural gas extraction: the newfound resources in- to diferentiate between individual countries when troduced a new source of revenue into a smoothly speaking of the “resource curse.” functioning fscal and political system. In addition, some economists believe that Norway’s well-edu- cated population was an important factor in efcient use of the natural resource boon.57 Saudi Arabia, however, faced a diferent state of afairs when oil was discovered. The nation had only been formally united for six years, and was mostly reliant on scant revenues from agriculture and tour- ism. Oil-driven prosperity set an early precedent for energy sector revenues as a vehicle for economic growth. This approach is evident in social policy: the concept of state responsibility to its citizenry is an integral part of Saudi political philosophy.58 Fur- thermore, Saudi Arabia has not developed its human capital to the extent that Norway has. Although the IMF reports that the number of Saudi graduates with tertiary education has doubled in the last decade, it also notes that providing these graduates with “the skills needed by the private sector has proved chal- lenging.” To combat this issue, training programs have been developed to teach skills to workers cur- rently in the labor force.59

CONCLUSION Historical context, difering cost and volumes of production, and distinct treatment of oil revenues can perhaps explain why Norway has managed to minimize dependence on its oil revenues while Saudi Arabia has struggled to do the same. However, the two nations have undeniably experienced symptoms

57 Gylfason, “Norway’s wealth: Not just oil.” 58 The Basic Law of Governance. The Kingdom of Saudi Arabia. 1992. 59 “Saudi Arabia: 2014 Article IV Consultation – Staff Report; Press Release,” 18. SPRING 2016 | 51

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ABSTRACT policy.1 It is crucial that European leaders understand Europe’s radical left has enjoyed a resurgence the relationship between austerity policy and the during the European debt crisis. This paper seeks to radical left. If EU policy is truly driving the resur- explain why this resurgence has occurred. It argues gence of the left, the Troika may be creating its own that protest sentiment regarding EU policy toward worst enemy. debtor countries, combined with centrism and a On average, European political parties are rad- “democratic deficit” in the EU, drove an explosion icalizing in both directions. In general, trends in the of support for radical left parties in Greece, Spain, European Parliament serve as a good indicator of na- and elsewhere. Reflecting upon the experiences of tional-level developments. While in the 2004 Parlia- radical left parties in the EU, this paper concludes ment elections, only 20 percent of successful candi- that in order to maintain their strength beyond the dates came from the far left or far right, this number crisis, the radical left must now paradoxically accept had increased to 29.6 percent by 2014.2 The growing a degree of moderation. success of radical candidates is also evident at the na- tional level. Most notably, Greece’s Syriza Party as- INTRODUCTION sumed control of the Greek government in January For the first time since the fall of “actually ex- 2015. Spain’s radical left-wing Podemos, meanwhile, isting socialism” in the Eastern Bloc, Europe faces an has also enjoyed sweeping popularity, and other left- actually existing radical left. Today’s iteration of the ist parties have experienced moderate gains during radical left, however, is not a neighboring geopolit- the debt crisis as well. Several factors can explain the ical rival, but a part of the European Union (EU) it- success of the radical left, including discontent with self. Although Northern European leaders are quick the current political system, protest sentiment about to criticize and dismiss radical leftist movements as the EU or national governments, and a lack of real 3 folly, they should exercise caution. Greece’s Syriza choice within the mainstream political system. party has taken power with a platform focused al- most exclusively on opposing the EU’s imposition of austerity on Greece during the ongoing debt cri- 1 Seumas Milne, “Syriza can’t just cave in. Europe’s elites want regime change in Greece.” The Guardian, July 1, sis. Other radical left parties across southern Europe 2015. have achieved greater prominence during the crisis 2 Pelinka, Anton. Die unehelige Allianz: die rechten und as well. Central European leaders remain firmly op- die linken Extremisten gegen Europa (Wien: Böhlau Verlag, posed to these parties, which actively challenge EU 2015), 41. 3 Luke March. Contemporary Far Left Parties in Europe: From Marxism to the Mainstream? (Berlin: Fried- rich-Ebert-Stiftung, 2008), 18. 54 | SOUND POLITICKS

posed to today’s “extreme left”—is willing to work In this paper, I will explain how EU policy to- within existing systems of government. This defi- ward debtor countries during the debt crisis cata- nition excludes most of today’s formal communist lyzed the recent success of the national-level radical parties. While RLPs during the Cold War were left. In addition, I will explain how the convergence distrusting of political institutions, they have, since of protest sentiment with other factors allowed rad- 1989, generally agreed to form governing coalitions ical left parties (RLPs) to enjoy sustained success and with moderate parties, accepting existing political legitimacy. I will begin by defining Europe’s radical structures. The radical left parties of today “no lon- left and placing it in a historical context. Then, I will ger view bourgeois parliaments as simply designed discuss the EU’s policy during the debt crisis and its to ‘dupe’ the working class.”7 Although, “Podemos effect on radical left parties. Next, I will address addi- leaders have often resisted the designation of ‘radical tional causes of the resurgence of the radical left and left,’ saying the group exists too far outside of the will conclude with a discussion of the radical left’s mainstream to be right or left,” the group’s behavior potential. Ultimately, I argue that today’s radical left mirrors that of a typical radical left party.8 It offers can, in the long term, achieve only a paradoxical an alternative to mainstream politics that does not success: in order to succeed, it will have to moderate require an overthrow of existing institutions. itself to the point of losing its radical character. Today’s RLPs have only recently recovered from near collapse after the fall of the Soviet Union. DEFINING AND CONTEXTUALIZING In the post-1989 period, Europe’s RLPs underwent THE RADICAL LEFT a “decline and mutation.” After losing the central Parties of the radical left are radical in that they organization provided by the existence of commu- see themselves as an alternative lying outside of the nist state, they gained flexibility in their policy ap- 9 typical political spectrum. They “defin[e] themselves proaches. One notable legacy of the communist era as to the left of and not merely on the left of social was RLPs’ avoidance of international organization, democracy [emphasis added].”4 Today’s radical left especially in their “failure to create a [transnational 10 parties run on policy programs that would funda- party] in the 1990s….” Thus, Europe’s radical left mentally change their governments’ internal func- remained isolated and largely impotent in the years tions and external relations, especially relations with following the collapse of the Soviet Union. Begin- the EU.5 In general, RLPs are “in favor of public in- ning in the 2000s, however, European RLPs began tervention in economic affairs and…opposed to pri- to recover. They participated in coalitions “in Ice- vatization of public services and economic deregula- land, France, Italy, Finland, and Ukraine” and be- tion. These are among its many differences—major came “dominant governing parties in Moldova and and minor—with social democracy, which has long been won over to the market economy.”6 At the same time, today’s radical left—as op- 7 Luke March. Contemporary Far Left Parties in Europe: From Marxism to the Mainstream? (Berlin: Fried- rich-Ebert-Stiftung, 2008), 13. 4 Richard Dunphy and Luke March, “Seven Year Itch? 8 Jess McHugh, “European Anti-Austerity 2015: Podem- The European Left Party: Struggling to Transform the EU,” Per- os, Spain’s Protest Party, Looks To An Uncertain Future After spectives on European Politics and Society 14, no. 4 (2013): 520. Tsipras Resignation, Dips In The Polls,” International Business 5 Alexis Tsipras, “Greece: What a SYRIZA government Times, September 2, 2015. will do,” Links International Journal of Socialist Renewal, Sep- 9 Luke March and Cas Mudde, “What’s Left of the Rad- tember 15, 2014. ical Left? The European Radical Left After 1989: Decline and 6 Luke March, “Beyond Syriza and Podemos, Other Rad- Mutation,” Comparative European Politics, no. 3 (2005): 23. ical Left Parties Are Threatening to Break into the Mainstream 10 Richard Dunphy and Luke March, “Seven Year Itch? of European Politics,” European Politics and Policy, March 24, The European Left Party: Struggling to Transform the EU,” Per- 2015. spectives on European Politics and Society 14, no. 4 (2013): 523. SPRING 2016 | 55

Cyprus.…” Overall, the radical left has recovered many ‘economics is a branch of moral philosophy.’”15 from its impotency in the 1990s.11 By 2009, Europe’s The “Troika” of the International Monetary Fund, radical left parties were comparatively well poised to European Central Bank, and European Commission exploit the debt crisis. eventually developed bailout packages, accompanied by harsh conditions of austerity applicable to Greece EU AUSTERITY POLICY AND THE as well as to Portugal and Ireland. The impact on RADICAL LEFT RESPONSE everyday life was dramatic. In the midst of austeri- The year 2008 began optimistically for the Eu- ty in 2011, Greece had the “highest rate of those at rozone, with German finance minister Peer Stein- risk of poverty or social exclusion in the Eurozone,” 16 bruck declaring, “my feeling about the Euro’s success a rate that rose by 3.3 percent in 2011 alone. The is close to euphoric.”12 Yet several dangerously linked suicide rate rose by 26.5 percent, the proportion of problems were households with brewing. Sever- no income more al peripheral Eu- “By 2009, Europe’s radical left than doubled to ropean countries parties were comparative- nearly 20 percent, ran up consistent- and the homeless ly large current population rose ly well poised to exploit the 17 account deficits, by 25 percent. which necessitat- debt crisis.” While Por- ed dependence on tugal and Ireland foreign capital and led to budget deficits and debt. have somewhat 18 Asset bubbles further exacerbated the problem, and recovered from their crises, Greece has not. It has led to bank solvency risks.13 These growing prob- required a total of three bailouts, including one in lems became impossible to ignore. The newly elect- the summer of 2015. However, the bailouts and the ed Greek prime minister George Papandreou of the accompanying austerity have appeared to worsen social-democratic left-wing PASOK party admitted Greece’s problems, turning public sentiment against that Greece had been covering up excessive deficit EU policy. As current Greek prime minister Alexis spending, using borrowed money that was easy to Tsipras explained in 2013, “when the Troika came to obtain due to Greece’s Eurozone membership.14 As Greece, the public debt was 110 percent of the GDP, markets reacted to the news of Greece’s insolvency, and now the public debt is more than 160 percent the crisis spread to other European countries that had of the GDP. …They saved the banks and destroyed 19 over-borrowed, collectively known as the PIIGS: the society.” After two more years of the Troika Portugal, Ireland, Italy, Greece, and Spain. regime, public debt climbed further, reaching 180 The EU, led by Germany, portrayed the ensuing financial crisis as not only a financial failure, but also a moral failure. Italian prime minister and former Eu- ropean commissioner Mario Monti joked, “for Ger- 15 John Peet and Anton LaGuardia. Unhappy Union. (Great Britain: Profle Books Ltd., 2014), 156. 16 Gonzalo Cavero and Irene Martín Cortés, “The True Cost of Austerity and Inequality: Greece Case Study,” Oxfam 11 Luke March. Radical Left Parties in Europe. (Abing- International, September 2013. don: Routledge, 2011), 4. 17 Ibid. 12 Johan van Overtveldt. The End of the Euro: The Uneasy 18 “Three Little Piggies,” The Economist, February 16, Future of the European Union. (Chicago: B2 Books, 2011), 77. 2015. 13 Ibid., 80. 19 Slavoj Žižek and Srećko Horvat, What Does Europe 14 Ibid., 83. Want? (New York: Columbia University Press, 2015), 160. 56 | SOUND POLITICKS percent of Greece’s GDP in 2015.20 In Žižek’s view, creditor countries knew what As a marginal political movement, the radical they were getting into by loaning to poorer south- left was well positioned to capitalize on the evolving ern countries, purposely creating a situation in which anti-establishment they could sentiment, in Greece control for- and elsewhere. Not “As a marginal political move- eign econom- only was the crisis it- ic policy with self a catastrophe for ment, the radical left was perceived le- the working class, well positioned to capital- gitimacy. but the existing po- Whatever litical system also ize on the evolving anti-es- the merits of failed to respond to Žižek’s con- its needs. As Troi- tablishment sentiment, in tention, argu- ka-imposed auster- ments such as ity and stabilization Greece and elsewhere.” his helped feed programs made con- growing nega- ditions worse, “widespread dissatisfactions with the tive sentiment regarding the system of the Troika, prevailing crisis management strategies” grew, and the EU, and domestic governance in debtor coun- “dissatisfaction rooted in these developments could tries. This rising popular sentiment provided a cat- not find its way into the political agendas of estab- alyst for the rise of the radical left. Luke March, for lished political organizations.”21 Both average cit- example, found that “support for RLPs seems strong- izens and critical theorists exhibited dissatisfaction ly related to [fears of globalization] and deep dissat- and seized the opportunity to attack the EU’s hier- isfaction with the effects of neo-liberalism associated archical structure. In response to the crisis, Slovenian with globalization and ‘market power Europe.’”23 theorist Slavoj Žižek wrote: Austerity measures and resulting negative pub- Today’s global capitalism brings the lic sentiment were particularly impactful in Greece. relationship of debtor/creditor to its The imposition of austerity in Greece “induced an extreme and simultaneously under- economic and social situation comparable only to mines it: debt becomes an openly ri- the 1929 financial crash in the United States: GDP diculous excess. We thus enter the contracted by 20 percent between 2008 and 2012, domain of obscenity: when a cred- and unemployment soared to 27 percent, with youth it is accorded, the debtor is not even unemployment reaching 60 percent.”24 The Syriza expected to return it—debt is direct- Party’s leader Alexis Tsipras, then the leader of the ly treated as a means of control and opposition, was quick to exploit the crisis, arguing domination…the Greek failure is part that the collapse was the precise goal of the policy of the game.22 implemented in Greece.25 Tsipras and his party at- tracted increasing support. Syriza members canvassed Greece’s most rural areas, spoke with farmers ignored 20 Pan Pylas and David McHugh, “The Case for Greece: When It Forgave Germany’s Debt,” Associated Press, July 2, 2015. 21 Sümercan Bozkurt-Güngen, “Crisis and Search for Po- 23 Luke March, Radical Left Parties in Europe, (Abing- litical Alternatives in Southern Europe: SYRIZA, Indignados and don: Routledge, 2011), 200. Five Stars Movement,” METU Studies in Development 41 (2014): 24 Yannis Stavrakakis, “Populism in Power: Syriza’s Chal- 486. lenge to Europe.” Juncture 21, no. 4 (2015): 276. 22 Slavoj Žižek and Srećko Horvat, What Does Europe 25 Slavoj Žižek and Srećko Horvat, What Does Europe Want? (New York: Columbia University Press, 2015), 124. Want? (New York: Columbia University Press, 2015), 152. SPRING 2016 | 57 by other political parties, set up food banks, and even ry at the national level.33 Yet by late 2015, the out- ran suicide help centers. Desperation in Greece also look had changed. In October 2015, voter support allowed Syriza to overcome an ideological barrier. for Podemos dropped to approximately 15 percent.34 In the recent past, radical left views were least popu- Despite having roots in the same crisis as Syriza, Po- lar in Greece.26 Yet following the crisis, “even tradi- demos has failed thus far to achieve the same degree tional right wingers…voted Syriza.”27 Without the success. crisis as a catalyst, it is unlikely that a Greek RLP Other European radical left parties have benefit- could have surmounted the strong sentiment against ted from the crisis to varying degrees. As of January the radical left in Greece. In January 2015, the Syriza 2014, European RLPs had, on average, gained a 2.1 Party won the Greek elections. In one decade, it had percent share of domestic votes—a relatively large gone from a marginal party polling at only 4 percent increase considering RLPs have traditionally occu- to a party leading the Greek parliament.28 pied a fringe position where they expect less than 10 Spain’s Podemos party also rode the wave of percent of votes.35 Beside Greece and Spain, radical anti-establishment sentiment; in fact, Podemos was left movements have been most active in Portugal specifically born out of the economic crisis, estab- and Italy: both PIIGS were affected by the crisis, al- lishing itself in January 2014.29 As its founder, Pablo though Portugal received an official bailout package Iglesias, explains, “the crisis itself has helped to forge and Italy did not. In Portugal, the Socialist Party in- new political forces.”30 Iglesias’s harsh rhetoric helped cluded Portugal’s radical left party, the Left Bloc, in incite further anger in Spain. As Iglesias spoke of the its governing coalition formed in November 2015, Troika’s “colonization” of Southern Europe, crowds creating “an anti-austerity alliance.”36 Italy’s Five of hundreds of thousands rallied for Podemos in Ma- Stars Movement (M5S) took a different path, refus- drid’s Plaza del Sol.31 The crisis proved to be partic- ing to join a “grand coalition government” in order ularly exploitable in Spain, with its long history of to maintain its status as the leading opposition party, corrupt and authoritarian rule. Podemos’s criticism despite receiving the highest number of votes for a of the current crisis came in the context of the “un- single party.37 Nonetheless, M5S “managed to capi- reformable ‘regime of 78’… which is in thrall to the talize on the window of opportunity offered by the troika and their friends in the bailed-out banks.”32 As economic crisis and the social discontent about the in Greece, the growing protest sentiment benefited new government’s austerity measures.”38 the radical left’s favor. By mid-2015, local election Key differences between the radical left in results seemed to promise a future Podemos victo- Greece and elsewhere can help to explain RLPs’ dif- fering degrees of success. In several ways, Syriza and

26 Mark Visser, Marcel Lubbers, Gerbert Kraaykamp, and 33 “Spain local elections: Podemos leader hails success,” Eva Jaspers, “Support for Radical Left Ideologies in Europe,” BBC News, May 25, 2015. European Journal of Political Research 53 (2014): 555. 34 Pablo Simón. “Why Is Podemos Losing Ground?” El 27 Paul Mason, “‘Hope Begins Today’: The inside Story of Pais, October 28, 2015. Syriza’s Rise to Power,” The Guardian, January 28, 2015. 35 Luke March, “Beyond Syriza and Podemos, Other Rad- 28 Ibid. ical Left Parties Are Threatening to Break into the Mainstream 29 Bécquer Seguín, “Podemos and Its Critics,” Radical of European Politics,” European Politics and Policy, March 24, Philosophy, no. 193 (October 2015), n.p. 2015. 30 Pablo Iglesias, “Understanding Podemos,” New Left 36 Associated Press, “Portugal’s Socialists to Take Power, Review, no. 93 (June 2015), n.p. Backed by Radicals,” Boston Herald, November 24, 2015. 31 Omar Encarnación, “Can the Far-Left Sweep Spain?” 37 Sümercan Bozkurt-Güngen, “Crisis and Search for Po- Foreign Affairs, February 6, 2015. litical Alternatives in Southern Europe: SYRIZA, Indignados and 32 Dan Hancox, “Why Ernesto Laclau Is the Intellectual Five Stars Movement,” METU Studies in Development 41 (2014): Figurehead for Syriza and Podemos,” The Guardian, February 9, 496. 2015. 38 Ibid., 497. 58 | SOUND POLITICKS the conditions in Greece were unique, making the some policy formulation and reinforcing the party success of the radical left difficult to repeat.39 Oth- family through decantation, legitimation and social- er European countries “weathered the economic re- ization.”42 cession in better shape than Greece,” which has re- Cooperation between national RLPs can have quired three bailouts as opposed to one or none.40 several benefits. Transnational parties “help iron With the Greek people suffering far more under out disagreements, distil common understandings imposed austerity measures, protest sentiment was and party cultures,” “decant” parties to sort out the naturally greater in Greece. However, there were authentic radical left, and “compensate for domes- also other factors at play. Syriza, its name an abbre- tic marginality or defeats.”43 The growing linkag- viation for the Greek “Coalition of the Radical Left,” es between European RLPs were clear during the gained legitimacy because of its foundation as a co- debt crisis. For example, Podemos’s hundred-thou- alition that combined Greece’s left-wing political sand-strong Madrid rally on January 30th, 2015 players. Meanwhile, Podemos, M5S, and other RLPs was a direct response to Syriza’s election on January compete with other left-wing opposition parties. 25th.44 At the same time, “even the largest TNPs… In Spain, for example, the Socialist Party has joined have only indirect effects on national parties,” and forces with the ruling People’s Party to “declare… the European Left has historically chosen its mem- war on Podemos, hoping to cripple the movement ber parties poorly, rendering its “potential to signifi- before it can begin in earnest.”41 Given the differing cantly further integration of European RLPs…very degrees of RLP success in Europe, it is clear that fac- doubtful.”45 Despite its weaknesses and “mosaic” na- tors beyond protest sentiment alone are necessary to ture, recent integration of the radical left has allowed produce victories for radical left parties. for a degree of cooperation between RLPs unprece- dented in recent European history.46 OTHER FACTORS IN THE RADICAL Beyond the practical mechanisms that have al- LEFT RESURGENCE lowed for radical left success, the centrist convergence If protest sentiment is not enough, factors beside of European politics during integration has left Euro- EU austerity policy must have played a role in the rise peans eager for a “real choice” outside of mainstream of the European radical left. Indeed, by 2009, Europe politics. This desire transcends the current crisis. An- was at an ideal juncture for a radical left resurgence. ton Pelinka argues that we can view ‘‘the EU as a 47 After decades of European integration, during the product of the political center.’’ Since large-scale first of which RLPs resisted internationalization in an effort to distance themselves from Moscow, Eu- 42 Richard Dunphy and Luke March, “Seven Year Itch? ropean RLPs finally began to organize into an inter- The European Left Party: Struggling to Transform the EU,” Per- national network by the early 2000s. The European spectives on European Politics and Society 14, no. 4 (2013): 534. Left, an organization that functions as a rudimentary 43 Ibid, 521-522. transnational party (TNP), “now performs (even if 44 Omar Encarnación, “Can the Far-Left Sweep Spain?” sub-optimally) some of most basic aims of a TNP, Foreign Affairs, February 6, 2015. 45 Richard Dunphy and Luke March, “Seven Year Itch? including co-ordination and information exchange, The European Left Party: Struggling to Transform the EU,” Perspectives on European Politics and Society 14, no. 4 (2013): 521-522. 39 Luke March, “Beyond Syriza and Podemos, Other Rad- 46 Luke March, “Beyond Syriza and Podemos, Other Rad- ical Left Parties Are Threatening to Break into the Mainstream ical Left Parties Are Threatening to Break into the Mainstream of European Politics,” European Politics and Policy, March 24, of European Politics,” European Politics and Policy, March 24, 2015. 2015. 40 Omar Encarnación, “Can the Far-Left Sweep Spain?” 47 Anton Pelinka, Die unehelige Allianz: die rechten und Foreign Affairs, February 6, 2015. die linken Extremisten gegen Europa, (Wien: Böhlau Verlag, 41 Ibid. 2015), 38. SPRING 2016 | 59 cooperation and agreement were required for Euro- search for nontraditional political alternatives.51 pean integration, the resulting union was necessarily While “convergent party systems appear to help near the political center. Both at the European and anti-establishment parties in general, rather than national level, “the centre polices the boundaries of the far left in particular,” modern Europe presents a political thought,” and the traditional left and right unique case.52 As a centrist consensus has emerged in have both moderated themselves to the point of con- European politics, the center has itself shifted right, vergence.48 The lack of real choice within European opening up political space on the left. Even left- politics has com- wing politicians bined with other enforce tradi- perceived prob- “Ultimately, politicians of tionally right- lems regarding wing economic governance, from the radical left have a choice: policy. For ex- the “democratic ample, it was deficit” to fear of they must accept the ongoing Greece’s Social- technocratic rule. ist Party that im- These concerns, moderation of their platforms posed a domestic coupled with the austerity pro- absence of real al- as the price of electoral suc- gram.53 While ternative political cess or accept an eternal posi- Europe’s right choices, caused a has also been ac- “‘legitimacy crisis’ tion on the political fringe.” tive during the [marked by] in- debt crisis, the creasing exclusion larger political of parliamentary mechanisms and public deliberation space open on the left helps explain RLPs’ somewhat from political decision-making processes.”49 greater success. With traditional parties offering only a choice between seemingly identical policies, voters sought CONCLUSION out an alternative. This was ideal for the radical left, While the EU’s imposition of austerity on Eu- since “an important factor in producing protest par- ropean debtor countries catalyzed the resurgence of ties is a ‘convergent party system,’ [which can] in- the European radical left, the resurgence was only crease the propensity for mobilization around ‘an- possible due to additional converging factors in the ti-establishment’ themes.”50 Voters who perceived European political context. Protest sentiment re- convergence as “cartelization,” the effect when key sulting from EU-imposed austerity, and the crisis political actors monopolize party competition and in general, built upon the framework of a relatively exclude political challengers, were more likely to well organized radical left that benefitted from a lack of real choice in European politics. However, even with Europeans relatively open 48 Dan Hancox, “Why Ernesto Laclau Is the Intellectual Figurehead for Syriza and Podemos,” The Guardian, February 9, to radical left politics, RLPs must develop their pro- 2015. test-based platforms into “a persuasive econom- 49 Sümercan Bozkurt-Güngen, “Crisis and Search for Po- litical Alternatives in Southern Europe: SYRIZA, Indignados and Five Stars Movement,” METU Studies in Development 41 (2014): 51 Ibid., 11. 484. 52 Ibid., 11. 50 Luke March, Contemporary Far Left Parties in 53 Dan Hancox, “Why Ernesto Laclau Is the Intellectual Europe: From Marxism to the Mainstream? (Berlin: Fried- Figurehead for Syriza and Podemos,” The Guardian, February 9, rich-Ebert-Stiftung, 2008), 11. 2015. 60 | SOUND POLITICKS ic program that could resolve the crisis and lead to the middle class.”58 growth, while improving the condition of working Ultimately, politicians of the radical left have a people”—something that European RLPs have large- choice: they must accept the ongoing moderation of ly failed to do.54 Though it is often EU and Troika their platforms as the price of electoral success or ac- intervention that have made domestic politicians un- cept an eternal position on the political fringe. While able to realize their economic programs, RLPs can many write off moderation as perfidy, only a radi- only succeed in the medium- to long-term if they cal left that holds power, even a relatively moderate can implement a feasible program even in difficult RLP, will have the chance to make real change. If times. They must act now to fully capitalize on pro- the radical left wants to engage in real world politics test sentiment following the debt crisis and ensuing over the long-term, it seems that it must accept a austerity. degree of moderation. Yet working with the political center and im- plementing feasible programs—the steps RLPs must take to survive—could themselves jeopardize the radical nature of the radical left. For the radical left, success is a paradox: winning European national elections means that radical left parties must mod- erate themselves to the point of losing their radical character. Conversely, the radical left cannot achieve lasting lasting success within the current system, so long as it remains a truly radical left. Indeed, for the truly radical, the recent success of the radical left has not been a success at all, but a “deep crisis,” in which RLPs have abandoned “the Marxist-Leninist tradi- tion” to pursue “electoralist” platforms.55 Indeed, to gain electoral success, RLPs must appeal to a wide base, and “the most successful far left parties… try to encapsulate all radical left trends under umbrella opposition.”56 Moderation has already manifested it- self in today’s radical left, as the Troika forced Syriza to accept harsher austerity than ever under a third bailout,57 and Podemos made over its economic pro- gram in an effort “to make itself less threatening to

54 Heiner Flassbeck and Costas Lapavitsas, Against the Troika: Crisis and Austerity in the Eurozone, (New York: Verso, 2015), 73. 55 Luke March, “Beyond Syriza and Podemos, Other Rad- ical Left Parties Are Threatening to Break into the Mainstream of European Politics,” European Politics and Policy, March 24, 2015. 56 Luke March, Contemporary Far Left Parties in Europe: From Marxism to the Mainstream? (Berlin: Fried- rich-Ebert-Stiftung, 2008), 137. 57 Krishnadev Calamur. “The Latest Victim of the Greek 58 Omar Encarnación, “Can the Far-Left Sweep Spain?” Crisis.” The Atlantic, August 20, 2015. Foreign Affairs, February 6, 2015. SPRING 2016 | 61

REFERENCES ative European Politics, no. 3 (2005). Almeida, Dimitri. The Impact of European Integra- Mason, Paul. “‘Hope Begins Today’: The inside tion on Political Parties: Beyond the Permissive Story of Syriza’s Rise to Power.” The Guard- Consensus. London: Routledge, 2012. Print. ian. January 28, 2015. Associated Press. “Portugal’s Socialists to Take McHugh, Jess. “European Anti-Austerity 2015: Power, Backed by Radicals.” Boston Herald, Podemos, Spain’s Protest Party, Looks To An November 24, 2015. Web. Uncertain Future After Tsipras Resignation, Bozkurt-Güngen, Sümercan. “Crisis and Search Dips In The Polls.” International Business for Political Alternatives in Southern Europe: Times, September 2, 2015. SYRIZA, Indignados and Five Stars Move- Milne, Seumas. “Syriza can’t just cave in. Eu- ment.” METU Studies in Development 41 rope’s elites want regime change in Greece.” (2014): 483–504. The Guardian, July 1, 2015. Calamur, Krishnadev. “The Latest Victim of the Cavero, Gonzalo, and Irene Martin Cortes. Greek Crisis.” The Atlantic, August 20, 2015. “The True Cost of Austerity and Inequality: Dunphy, Richard, and Luke March. “Seven Year Greece Case Study.” Oxfam International, Itch? The European Left Party: Struggling to September 2013. Transform the EU.” Perspectives on European Peet, John, and Anton LaGuardia. Unhappy Politics and Society 14, no. 4 (2013): Union. Great Britain: Profile Books Ltd., 520–537. 2014. Encarnación, Omar. “Can the Far-Left Sweep Pelinka, Anton. Die unehelige Allianz: die rechten Spain?” Foreign Affairs, February 6, 2015. und die linken Extremisten gegen Europa. Flassbeck, Heiner, and Costas Lapavitsas. Against Wien: Böhlau Verlag, 2015. the Troika: Crisis and Austerity in the Euro- Pylas, Pan, and David McHugh. “The Case for zone. New York: Verso, 2015. Greece: When It Forgave Germany’s Debt.” Hancox, Dan. “Why Ernesto Laclau Is the Intel- Associated Press, July 2, 2015. lectual Figurehead for Syriza and Podemos.” Seguin, Becquer. “Podemos and Its Critics.” Rad- The Guardian. February 9, 2015. ical Philosophy, no. 193 (October 2015). Iglesias, Pablo. “Understanding Podemos.” New Simón, Pablo. “Why Is Podemos Losing Ground?” Left Review, no. 93 (June 2015). Web. El Pais, October 28, 2015. November 29, 2015. “Spain local elections: Podemos leader hails suc- March, Luke. Contemporary Far Left Parties in Eu- cess.” BBC News, May 25, 2015. rope: From Marxism to the Mainstream? Stavrakakis, Yannis. “Populism in Power: Syriza’s Berlin: Friedrich-Ebert-Stiftung, 2008. Challenge to Europe.” Juncture 21, no. 4 March, Luke. Radical Left Parties in Europe. (2015): 273–80. Routledge Studies in Extremism and Democracy “Three Little Piggies.” The Economist, February 14. Abingdon: Routledge, 2011. 16, 2015. March, Luke. “Beyond Syriza and Podemos, Oth- Tsipras, Alexis. “Greece: What a SYRIZA gov- er Radical Left Parties Are Threatening to ernment will do.” Links International Journal Break into the Mainstream of European of Socialist Renewal. September 15, 2014. Politics.” London School of Economics and van Overtveldt, Johan. The End of the Euro: The Political Science. European Politics and Pol- Uneasy Future of the European Union. icy, March 24, 2015. Chicago: B2 Books, 2011. March, Luke, and Cas Mudde. “What’s Left of the Visser, Mark, Marcel Lubbers, Gerbert Kraaykamp, Radical Left? The European Radical Left and Eva Jaspers. “Support for Radical Left After 1989: Decline and Mutation.” Compar- Ideologies in Europe.” European Journal of 62 | SOUND POLITICKS

Political Research 53 (2014): 541–58. Žižek, Slavoj, and Srećko Horvat. What Does Eu- rope Want? Insurrections: Critical Studies in Religion, Politics, and Culture. New York: Columbia University Press, 2015 SPRING 2016 | 63 AN INTERVIEW WITH PROFESSOR JESSICA STANTON CONDUCTED BY JORDAN DANNENBERG

JD: Tell us about your forthcoming book Vi- rebel groups regularly target individual civilians who olence and Restraint in Civil War: Civilian Targeting in they think are aiding the other side. If a government the Shadow of International Law. or rebel group thinks that someone is collaborating with the enemy, it goes and finds that person, in- JS: The book project came out of my disserta- terrogates him or her, and, in some cases, kills that tion research when I was in graduate school. The person. That kind of violence is pervasive. What I’m main research question driving the book is why gov- interested in is larger scale, more collective forms of ernments and rebel groups deliberately attack civil- violence in which large groups of civilians are tar- ians in some civil wars and not in others. In the book, geted at once. I frame this question in the context of international The basic argument that I make in the book is humanitarian law. I think about why, in some cases, that violence against civilians is often strategic. Gov- governments and rebel groups commit severe abuses ernments and rebel groups use violence against ci- against civilian populations in violation of interna- vilians because they believe that it will help them to tional humanitarian law, whereas in other cases they achieve their strategic objectives in the conflict. They largely refrain from violence against civilians. I’m es- make cost-benefit calculations about the use of vio- pecially interested in the cases in which governments lence, but these cost-benefit calculations take place and rebel groups don’t attack civilian populations. I in what I call “the shadow of international law.” This think there is a tendency—and this was part of the is where part of the book’s title comes from. This is motivation for the book—to assume that all civil wars the idea that, especially in the period since World involve egregious atrocities against civilian popula- War II, international humanitarian law has grown in tions. Media attention to civil wars tends to focus on strength, with the signing of the 1949 Geneva Con- cases like Rwanda and Bosnia, in which there was ex- ventions, the Additional Protocols to the Geneva treme violence against civilians, and this leads people Conventions that were signed in the 1970s, and then, to think that all civil wars involve extreme violence more recently, the Rome Statute of the International against civilians. But, when you actually look at the Criminal Court. So you see a growth in international data, you see that a little more than 40 percent of humanitarian law in the post-World War II period, rebel groups and almost half of governments do not and then with the end of the Cold War you also see engage in large-scale, deliberate attacks on civilian an increasing role for international institutions and populations. That doesn’t mean there is no violence for international actors to enforce international hu- against civilians at all in those conflicts. If you look manitarian law. Even so, international law does not across civil wars, you see that almost all civil wars have a direct impact on state behavior or rebel group involve violence against civilians. Governments and behavior; it is not as simple as a state signing onto an 64 | SOUND POLITICKS international treaty regarding international human- dence for East Timor. The LRA case was a case of itarian law and then automatically complying with high rebel group violence and lower government the terms of the treaty. Rather, I argue that this body violence. The LRA engaged in severe attacks against of international humanitarian law creates a frame- civilian populations, which is part of what drew the work that shapes the calculations governments and attention of the Kony 2012 campaign as well as oth- rebel groups make about how to behave during civil er recent media attention. Joseph Kony, the leader war. Governments and rebel groups weigh the costs of the LRA, as well as several other high-level LRA and benefits of violence. They weigh the benefits members have been indicted by the International of violence by thinking about their opponent and Criminal Court (ICC). The cases in Indonesia were their opponent’s relationship with its civilian con- the counterpoint to Uganda, in terms of level of vi- stituents—how their opponent is likely to respond to olence. These are cases of low rebel group violence violence, and how violence might undermine pop- and higher government violence. The government ular support for their opponent. Governments and violence in Indonesia mainly happened during the rebel groups also weigh the costs of violence, based period of Suharto’s rule. He was a dictator who ran on an evaluation of their own relationship with their Indonesia for a number of decades. In the late 1990s, own civilian constituencies. One of the main argu- Indonesia underwent a political transition to democ- ments I make in the book is that for the governments racy; but the civil wars continued during the period and rebel groups that need to build broad domestic of political transition. After the end of the Cold War, and international constituencies—that need a broad only one other country transitions to democracy base of support—the costs of engaging in violence while a civil war is ongoing. One of the things I was are high. These governments and rebel groups wor- interested in regarding the Indonesia case was think- ry about the risk of backlash if they attack civilians. ing about how that process of political transition in- So these are the governments and rebel groups that fluences the government’s behavior and policies to- are most likely to refrain from using violence against ward the rebel groups in those regions. In particular, civilians and are most likely to exercise what I call I looked at how domestic and international pressures “restraint” in the book. to reign in human rights abuses influenced the newly democratizing Indonesian government’s policies to- JD: Can you describe your field research in ward Aceh and East Timor. Indonesia and Uganda. What were these expe- In both countries I was trying to interview as riences like, and what unique insight did they many people as I could both from the government provide? side and the rebel group side: former members of the military, former or current political officials in the JS: As I said, the book project came out of my dis- government, former members of rebel groups, hu- sertation research, which I did when I was in gradu- man rights activists and leaders of NGOs, and ob- ate school. So as part of my dissertation research I did servers who were living in those regions while the field research in Uganda and Indonesia. In Uganda conflicts were ongoing and who could tell me about I was researching the conflict with the Lord’s Resis- the details. I wanted to do field research mainly be- tance Army (LRA) and its fight against the Ugan- cause I felt uncomfortable writing a dissertation and dan government. In Indonesia I was researching two then a book about civil wars without having been conflicts: the conflict in Aceh between the Free Aceh somewhere that has recently experienced a civil war. Movement (also called GAM), which was fighting Certainly, I could read primary and secondary sourc- for autonomy or independence for the northern es available on these conflicts, but I felt that there was tip of Indonesia right near Malaysia, a region called a limit to the information I could gather in terms of Aceh, and the East Timor conflict involving a rebel really getting a sense of the details and the context. group that was fighting for autonomy or indepen- A lot of the argument that I end up making in the SPRING 2016 | 65 book is about strategic calculations that governments settlements, and only about 30 percent end through and rebel groups make, and I felt that that was hard military victory. The other change that happens is to truly understand just from reading secondary and that you also see increased international intervention. background information. During the Cold War, the institutional structure of the United Nations and the Security Council, with JD: Why have we witnessed civil wars be- the ability of the U.S. and the Soviet Union to veto come more prevalent as compared to interstate any kind of UN intervention, makes it such that you wars? Do you believe this altered pattern of con- don’t see much UN involvement in civil wars. After flict will persist? the end of the Cold War, space opens up for UN intervention. During this period, the UN has inter- JS: It’s a tough question. If you think about the vened to try to end civil wars in about 65 percent of trajectory over time in terms of civil wars first, you cases. By comparison, the UN was involved in less see a peak in the number of civil wars in the early that 20 percent of civil wars during the Cold War. 1990s—just in terms of the number of ongoing civ- This gets to your question about change over time in il wars in the international system. When scholars that I think it’s increasingly the case that if you have recognized this, there was a lot of debate about why an intense or long-running civil war, the UN often we saw this peak in the number of civil wars in the does try to get involved—for example, by trying to early 1990s. Did the end of the Cold War cause out- mediate some kind of resolution to the conflict. In- breaks of civil war? Scholars found that the end of ternational intervention is not always successful, ob- the Cold War and the breakup of the Soviet Union, viously, and there are conflicts like the one in Syria as well as the fall of other Communist governments, that are going to be intense and long running, but I like the former Yugoslavia, was part of the story. But think this increased UN involvement works against this peak was also related to the large number of civil the likelihood that we would ever see a peak in the wars that began during the Cold War period, and number of ongoing civil wars like we saw in the ear- then continued after the end of the Cold War. So ly 1990s. you end up in the early 1990s with this very large In terms of the difference between interstate number of civil wars—in part new conflicts and in wars and civil wars, it’s hard to say. I think part of it part civil wars that hadn’t ended. has to be a story about the development of nuclear Since the early 1990s, the total number of civ- weapons and the potential for nuclear weapons to il wars ongoing in the international system has de- strengthen deterrence among the major powers in clined somewhat. I think we are likely to continue to the international system, which decreases the likeli- see a significant number of civil wars in the interna- hood that you’ll have war among the major powers tional system, but I doubt that we’ll again reach that in the international system. Other factors like eco- peak that we had in the early 1990s. One reason why nomic interdependence or the spread of democra- I don’t think we’ll see such a large number of ongo- cy might also be contributing to the decline in in- ing conflicts again is that the pattern of international terstate war among major powers. In terms of civil involvement in civil wars has changed dramatically wars, I think we’ll continue to see contestation over after the end of the Cold War. In the post-Cold War how power should be shared and over power dy- period, about 70 percent of conflicts end through ne- namics within countries. I don’t see that necessarily gotiated settlements; whereas from the end of World dramatically changing in the next several decades. War II up until about 1989, about 80 percent of conflicts ended through a military victory, and only JD: You talked about how international in- about 20 percent through some sort of negotiated volvement in civil war has changed over time. settlement. After the end of the Cold War this flips; Could you elaborate on how the international about 70 percent of conflicts end through negotiated community’s approach to conflict, more gener- 66 | SOUND POLITICKS ally, has changed over time? And, in the wakes of countries had a strong interest in addressing that con- the Arab Spring and the wars in Libya and Syria, flict. But major power involvement is relatively rare, do you foresee any significant changes in inter- which has created this space for UN involvement national response in the near future? in trying to resolve civil wars. So I think the UN will continue to play a role in civil war, particularly JS: As I mentioned, I think you see a shift after in cases in which major powers don’t have a strong the end of the Cold War certainly in terms of in- strategic interest at stake. Still, there will be limits to creased UN involvement. But this involvement takes the possibility for UN intervention. Contrast Syria the form of not only helping to negotiate and medi- with the Congo where you have a massive UN oper- ate settlements to conflict, but also of sending peace- ation that’s been ongoing for many decades. Would keeping missions to help enforce those settlements, that have been possible if a major power was strongly monitor the terms of cease fires, and implement against that kind of intervention? Probably not. peace agreements. And, increasingly, those peace- keeping missions are becoming expansive. The UN JD: Your research has examined strategies is not just there to monitor the terms of the ceasefire, employed by rebel groups in civil wars. How does but it’s also going to help install and create new po- someone who studies civil conflict approach litical institutions, monitor the huge process of polit- ISIS—a group that does not necessarily fit neatly ical transition, support economic development, and into the same category as the PKK or FARC, for all sorts of other things that come along with that. So example. What makes ISIS similar and different I think we not only see a change in the likelihood of to other rebel groups? UN involvement in civil wars, but also a change in the character of UN involvement—an expansion of JS: I think this is a really interesting question. UN activities. Basically, I think ISIS is a group that strains the defi- Where are we likely to see this go in the wakes nitions that we as political scientists have for rebel of the Arab Spring and Syria? I think what Syria groups active in civil wars and also the definitions teaches us is that despite the increased involvement we use to identify transnational terrorist groups. A of the UN after the end of the Cold War, power still transnational terrorist group is a group that has op- matters in international relations, and there are limits erations in a particular country, but its political goals to what the UN can do. The structure of UN institu- and its activities span borders. So a group like al Qae- tions does matter. We have a UN structure in which da might have its bases in Afghanistan, but its polit- the U.S. and Russia are permanent members of the ical objectives are directed at the United States and Security Council and can veto Security Council res- other Western governments. Political scientists often olutions, getting in the way of attempts to create UN distinguish between transnational terrorist groups or peacekeeping missions in some cases, such as Syria. transnational insurgencies and domestic insurgen- I think the lesson of Syria, again, is that power still cies. Domestic insurgencies are insurgent groups matters and powerful countries, if they have a vested or rebel groups that have political objectives that are interest in a particular ongoing civil war, can either directed at the government in charge of the territory make it difficult to reach a negotiated resolution to where the group is operating. You gave the exam- the conflict—or easier—if they find that to be in their ple of the PKK, which is a group whose goal is to interests. Yet, major power interest in countries with achieve autonomy or independence for the Kurdish ongoing civil wars is relatively rare. We haven’t seen region or Turkey—its goals are directed at the Turk- very many civil wars after the end of the Cold War ish government and its mainly carries out attacks in which major powers like the U.S. and Russia have within Turkey. had such a strong influence in the conflict. Maybe ISIS is challenging because it has characteristics Bosnia would be somewhat similar, in that European of both of these types groups. It currently controls SPRING 2016 | 67 territory in Syria and Iraq and, in some respects, ap- It’s possible that as you’re focusing on one of these pears to be like a rebel group fighting against two efforts that you might impede the other. For exam- different governments at the same time, which also ple, perhaps part of the reason why ISIS might be makes it unusual. ISIS controls territory in Syria, and carrying out attacks in Europe is related to the fact has political objectives that are relevant to and di- that ISIS is feeling pressured militarily in Syria and rected at the Syrian government. It says that it wants Iraq. ISIS sees its territory getting eaten away by air to establish an Islamic caliphate in the region, which attacks and other military assaults on its territorial would involve changing the nature of the Syrian control, and it’s lashing out against the Russian gov- government. But because ISIS has political goals di- ernment, as well as against European governments rected at both the Syrian government and the Iraqi that have been involved in those attacks. Again, it’s government, it looks almost like a “double civil war.” unclear how to balance the two strategies. I think In addition, ISIS is carrying out transnational attacks, that’s what has been so challenging both for academ- recently in various European cities. In that respect, ics and for policymakers. ISIS looks a lot like a transnational insurgency, more like al Qaeda because it’s now carrying out attacks across borders and, perhaps, has goals that span bor- ders, given its desire to establish a caliphate and its desire to deter Russia, the US, and European gov- ernments from getting in the way of this. ISIS is not envisioning that it would remain within the territory of what is now Syria and Iraq. Its vision for political change involves much broader political change that moves beyond Syria and Iraq. I think this is part of what has made ISIS so difficult to deal with from a policy perspective, and also so difficult for academics to fully understand—because it doesn’t fit neatly into these categories that we have created and that we use to understand and organize the political world that we see. It makes ISIS really difficult to figure out. In terms of how you address ISIS, this challenge in categorizing ISIS also makes it difficult to know whether to think about this in terms of counterin- surgency—fighting against ISIS like you would fight against a rebel group or insurgent group that’s trying to topple a government—or whether to think about this in terms of launching counterterrorism opera- tions that involve trying to locate and disperse ISIS cells that are operating in various countries. Policy- makers seem to have been trying to do both—con- ducting air strikes against the territory that ISIS controls to try to eat away at that territorial control, but also trying to round up, detain, and interrogate members of ISIS that living in Europe and elsewhere. I think this has made the process feel very unwieldy, that you’re trying to do these things simultaneously. SPRING 2016 | 69

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